Financing. (a) Subject to the terms and conditions of this Agreement, Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement. (b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.

Appears in 4 contracts

Sources: Agreement and Plan of Merger (PMC Sierra Inc), Agreement and Plan of Merger (Skyworks Solutions, Inc.), Merger Agreement (PMC Sierra Inc)

Financing. (a) ~~Subject~~ Tenant agrees to pay all reasonable costs and expenses incurred by Landlord in connection with the ~~terms~~ purchase, leasing and ~~conditions~~ initial financing of ~~this Agreement, Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain~~ the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall notLeased Premises including, without ~~the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under~~limitation, the ~~Debt Commitment Letter if such amendment~~reasonable cost of appraisals, ~~supplement~~environmental reports, ~~replacement~~title insurance, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financingsurveys, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete legal fees and ~~correct copies of any such amendment, modification or replacement~~expenses and Lender’s commitment fee. (b) ~~Parent shall~~If Landlord desires to obtain or refinance any Loan, Tenant shall negotiate in good faith with Landlord concerning any request made by any Lender or proposed Lender for changes or modifications in this Lease, provided that Tenant shall not be obligated to agree to any change which increases its obligations hereunder in any material respect. In particular, Tenant shall agree, upon request of Landlord, to supply any such Lender with such notices and reasonable information as Tenant is required to give to Landlord hereunder and to extend the rights of Landlord hereunder to any such Lender and to consent to such financing if such consent is requested by such Lender. Tenant shall provide any other consent or statement and shall ~~cause its Affiliates~~ execute any and ~~Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided~~ all other documents that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid Lender requires in connection with ~~the transactions contemplated by this Agreement~~such financing, ~~(x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash~~including any subordination, ~~(y) Parent promptly notifies the Company of such substitution~~ non-disturbance and ~~reduction and (z) true~~attornment agreement, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that same do not materially adversely affect ~~the enforceability~~any right, ~~availability~~ benefit or ~~conditionality of~~privilege of Tenant under this Lease or materially increase Tenant’s obligations under this Lease. Such subordination, nondisturbance and attornment agreement may require Tenant to confirm that (a) Lender and its assigns will not be liable for any misrepresentation, act or ~~the aggregate amount~~ omission of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, Landlord and (~~iii~~b) ~~any reference in this Agreement to “fee letter” shall~~ Lender and its assigns will not be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to ~~compliance with Section 6.14(a)(iii~~any counterclaim, demand or offsets which Tenant may have against Landlord (except for any Escrow Payments or Net Award actually held by Lender). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.

Appears in 4 contracts

Sources: Lease Agreement (Tower Automotive, LLC), Lease Agreement (Tower Automotive, LLC), Lease Agreement (Tower Automotive, LLC)

Financing. (a) ~~Subject~~ The Company will, and will cause each of its Subsidiaries to, use its reasonable best efforts to cause its and their respective Representatives to, at Parent’s sole cost and expense, cooperate with the Parent and take such actions as the Parent may reasonably request in connection with the procurement and consummation of the Financing (or any Alternative Financing); provided that nothing contained in this Section 6.9 shall require such cooperation to the ~~terms~~ extent it would unreasonably interfere with the ongoing operations of the Company and ~~conditions of this Agreement,~~ its Subsidiaries. (b) Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, ~~advisable~~ proper or ~~proper~~ advisable, to ~~arrange and obtain~~ (i) maintain in effect the Debt Financing Letter and to satisfy the conditions for obtaining the Financing, (ii) enter into definitive financing agreements with respect to the Financing so that such agreements are in effect no later than the Share Acceptance Time and (iii) consummate the Financing on or prior to the Share Acceptance Time. Without limiting the generality of the foregoing, in the event that Parent has been notified by the lenders party to the Debt Financing Letter that any portion of the Financing will not be available on the terms and conditions ~~described in~~ contemplated by the Debt ~~Commitment Letter pursuant to~~ Financing Letter, the ~~terms thereof (including any “market flex” provisions) including using~~ Parent shall promptly notify the Company in writing and use its reasonable best efforts to ~~seek~~ obtain alternative debt financing (“Alternative Financing”) in an amount at least sufficient to, in addition to ~~enforce its rights~~ the cash and marketable securities of CIFSA and the portion of the Financing that remains available on the terms and conditions contemplated by the Debt Financing Letter, pay when due for all of the Shares tendered and not properly withdrawn in the Offer and the aggregate Merger Consideration. Parent shall not agree to any amendments or modifications to, or waivers of, any condition or other material provision under the Debt ~~Commitment~~ Financing Letter ~~in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not,~~ without the ~~Company’s~~ prior ~~written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver~~ consent of ~~any provision under,~~ the ~~Debt Commitment Letter~~ Company if such amendment, ~~supplement, replacement,~~ modification or waiver ~~(A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes~~ would impose new or additional conditions to the ~~initial funding~~ receipt of the Financing or otherwise ~~expands~~ amend, modify or waive any of the conditions to the receipt of the ~~Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter~~ Financing in a manner ~~that~~ would reasonably be expected to ~~(x)~~ cause any delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement. (b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in Annex I or Article VII. Notwithstanding the ~~Debt Commitment Letter~~foregoing, neither the Parent nor the Purchaser shall be required to ~~consummate the Debt Financing at~~ (i) waive any conditions and requirements set forth in Annex I or ~~prior~~ Article VII, (ii) consent to any changes to the ~~Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt~~ Financing ~~at or prior to the Effective Time. In the event that all conditions precedent expressly~~ as set forth in the Debt Commitment Letter ~~have been or, upon funding of~~ or (iii) accept Alternative Financing on terms less favorable to the ~~Debt Financing will be, satisfied,~~ Parent and ~~Sub shall use their reasonable best efforts to enforce their rights under, and cause~~ the Purchaser in the aggregate than the Financing ~~Sources~~would have been. In the event the Parent obtains Alternative Financing, ~~lenders and~~ the ~~other persons providing or committing~~ provisions of this Section 6.9 shall apply to ~~provide the Debt~~ such Alternative Financing to ~~comply with their obligations under~~ the ~~Debt Commitment Letter and definitive financing agreements and~~ same extent it applies to ~~fund on or before~~ the ~~Effective Time the Debt~~ Financing. The Parent shall keep the Company informed on a reasonably current basis ~~and~~ in reasonable detail of the status of its reasonable best efforts to ~~arrange~~ finalize the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or ~~(iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or~~ arrange any ~~portion of the Debt~~ Alternative Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with ~~the Company Credit Agreement, subject to compliance with~~ this Section ~~6.14(a)(iii)~~6.9. (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.

Appears in 3 contracts

Sources: Merger Agreement (COV Delaware Corp), Merger Agreement (Ev3 Inc.), Merger Agreement (Covidien PLC)

Financing. (a) ~~Subject~~ Prior to the Closing, Buyer shall use its commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things, in each case, within its control, necessary, proper or advisable to arrange financing on the terms and conditions described in the Debt Commitment Letter. Buyer shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, the Debt Commitment Letter without Seller’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed) if such amendment, modification or waiver (i) reduces the aggregate amount of the Financing, when taken together with Buyer’s cash on hand, to an amount below the amount required to satisfy Buyer’s obligations under this Agreement, (ii) impairs in any material respect the availability of the Financing, or (iii) amends the conditions precedent to the Financing in a manner that would reasonably be expected to delay in any material respect or prevent the Closing (provided that Buyer may, after consultation with Seller, replace or amend the Debt Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Commitment Letter as of the date hereof so long as such action would not reasonably be expected to materially delay or prevent the Closing), including using its commercially reasonable best efforts to (a) maintain in effect the Debt Commitment Letter, (b) satisfy on a timely basis, to the extent within its control, all terms and conditions applicable to Buyer to obtaining the debt financing set forth therein, (c) negotiate and enter into definitive agreements with respect to the Debt Commitment Letter on the terms and conditions contained in the Debt Commitment Letter, and (d) comply with its obligations under the Debt Commitment Letter. (b) In the event of any Financing Failure Event (other than a Financing Failure Event caused by the breach by Seller of this Agreement), ~~Parent~~ to the extent any portion of the Financing is required to fund the Purchase Price and any other amounts required to be provided by Buyer for the consummation of the transactions contemplated hereby, Buyer shall use its commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things ~~necessary, advisable or proper to arrange~~ reasonably necessary for and obtain as promptly as practicable following the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies occurrence of any such amendment, modification or replacement. (b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter Financing Failure Event alternative debt financing (the “~~Debt Financing Agreements~~Alternative Financing”) ), on substantially equivalent or more favorable terms in the ~~terms~~ aggregate from the same or other sources and ~~conditions~~ which do not include any incremental conditionality to the consummation of such alternative debt financing that are ~~not~~ materially ~~less favorable~~ more onerous to ~~Parent than those contained~~ Buyer (in the ~~Debt Commitment Letter, (C~~aggregate) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of than the conditions set forth in the Debt Commitment ~~Letter~~Letter in effect as of the date of this Agreement in an amount sufficient, which, subject to fulfilment of the conditions set forth in this Agreement, are available to Buyer, together with its cash on hand, to consummate the ~~Debt Financing at or prior~~ transactions contemplated hereby and to pay related fees and expenses earned, due and payable as of the Closing Date, it being understood and agreed that if Buyer proceeds with any Alternative Financing, Buyer shall be subject to the ~~Closing, (D)~~ same obligations with respect to ~~comply~~ such Alternative Financing as set forth in this Agreement with ~~its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior~~ respect to the ~~Effective Time~~Financing. In the event that ~~all conditions precedent expressly set forth in the Debt Commitment Letter have been or~~Alternative Financing is obtained, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent Buyer shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent Seller with a true and correct copy of the ~~Company, take any action or enter into any transaction~~ new financing commitment letter that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent provides for ~~all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v)~~ such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Alternative Financing (the “Alternative ~~Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt~~ Financing ~~(each, a “New Debt~~ Commitment Letter”), together with ~~all related~~ each fee ~~letters and associated engagement letters~~ letter (~~solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic~~ subject to redaction so long as such redaction does not cover terms that ~~do not~~ would adversely affect the ~~enforceability~~conditionality, availability or ~~conditionality of~~term of the Financing). If applicable, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “~~fee letter~~Financing” shall include “Alternative Financing”, and any reference to “Debt Commitment Letter” shall include the “Alternative Financing Commitment Letter”. (c) Notwithstanding the foregoing, in no event shall the commercially reasonable best efforts of Buyer be deemed or construed to ~~include~~ require Buyer to, and Buyer shall not be required to (i) pay in the aggregate any ~~fee letter relating to~~ fees in excess of $25,000 more than the fees contemplated by the Debt Commitment Letter or any related fee letter, (ii) agree to conditionality terms in connection with the Financing that ~~is not superseded~~ are materially less favorable than those contemplated by ~~any New~~ the Debt Commitment Letter, (iii) agree to economic terms of the Financing (including cost of capital, maturity and fees) that are less favorable than those contemplated by the Debt Commitment Letter at or any related fee letter (including any “flex” provisions therein), (iv) waive any terms or conditions of this Agreement or of the ~~time in question and each New~~ Debt Commitment Letter or (v) require Buyer to initiate, prosecute or maintain any action, suit, claim, arbitration or other legal proceeding against the Lender, other potential lenders or other Persons providing the Financing under the Debt Commitment Letter. (d) During the period from the date of this Agreement to the Closing Date, Seller shall use its commercially reasonable best efforts, and to cause its Representatives to, provide Buyer all cooperation that is reasonably requested by Buyer in connection with the Financing, the proceeds of which shall be used to consummate the transactions contemplated hereby, which cooperation shall include, in any event: (i) participation in a reasonable number of meetings, presentations, road shows, due diligence sessions (including accounting due diligence sessions), drafting sessions, sessions with prospective lenders and sessions with rating agencies; (ii) making Seller’s officers reasonably available to assist the Lender; (iii) cooperating reasonably with the Lender’s due diligence, to the extent ~~then~~ customary and reasonable, including delivery of corporate organizational documents, and lien searches contemplated by the Debt Commitment Letter; (iv) assisting Buyer and the Lender with the preparation of customary materials for rating agency presentations (and assisting in ~~effect~~the obtaining of corporate, credit and facility ratings from ratings agencies), offering documents, bank information memoranda (including the delivery of customary authorization and representation letters authorizing the distribution of information to prospective lenders or investors and containing a representation that the public side versions of such documents, if any, do not include material non-public information regarding Purchased Assets and the Joe’s Business), and all other material required in connection with the Financing and all documentation and other information reasonably required in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act; provided that, at least 5 Business Days prior to the Closing, Seller shall provide all such documentation and information about the Purchased Assets and the Joe’s Business as is reasonably requested in writing by Buyer at least 7 Business Days prior to the Closing to the extent required under applicable “know your customer” and anti-money laundering rules and regulations including the PATRIOT Act; (v) assisting with the preparation of, and executing and delivering, any pledge and security documents, any loan agreement, notes, other definitive financing documents, legal opinions, or any other documents that facilitate the preparation of the definitive documentation for the Financing or the creation, perfection of liens securing the Financing as may be reasonably requested by Buyer in connection therewith; (vi) facilitating the pledging of collateral and providing reasonable access in connection with any collateral audits and appraisals required in connection with the Financing; (vii) assisting Buyer in preparing customary financial information and disclosures regarding the Purchased Assets or the Joe’s Business, as may be reasonably requested by Buyer and identifying any portion of such information that constitutes material non-public information; (viii) instructing its independent accountants to cooperate with and assist Buyer in preparing customary and appropriate information packages and offering materials as the Lender or other prospective lenders may reasonably request for use in connection with the Financing and using commercially reasonable best efforts to cause such accountants to consent to the use of their reports in any material relating to the Financing (including, but not limited to, the audited financial statements referred to in the definition of “Required Information” set forth herein); (ix) using commercially reasonable best efforts to obtain customary payoff letters, lien releases, instruments of termination, waivers, consents, estoppels, approvals or discharge, in each case reasonably requested by Buyer in connection with the Financing and collateral arrangements; and (x) taking such corporate or entity actions, subject to the occurrence of the Closing, reasonably requested by Buyer to permit the consummation of the Financing and to permit the proceeds thereof to be made available at the Closing; provided, that (A) no such requested cooperation may unreasonably interfere with the ongoing operations of Seller, (B) no obligation of Seller under any certificate, agreement, notice or other document or instrument shall be effective until the Closing, and Seller shall not be required to pay or incur any liability for any commitment or other similar fee, pay or incur any liability for any expense (other than as provided in this Agreement) or incur any other obligation or liability in connection with the Financing prior to the Closing unless promptly reimbursed by Buyer (provided that notice of such fee, liability or expense is provided to Buyer) and (C) neither Seller nor its directors or officers shall be required to take any action to authorize or approve the Financing (or any Alternative Financing). (e) On Seller shall use reasonable best efforts to, as promptly as practicable, update or correct any Required Information determined to contain any untrue statement of material fact or omit to state any material fact necessary to make the ~~Closing Date, Parent shall provide all funds required~~ statements contained therein not materially misleading. Seller hereby consents to ~~effect~~ the ~~repayment~~ reasonable use of ~~all indebtedness under the Company Credit Agreement~~ its and its Subsidiaries’ logos in ~~full in accordance~~ connection with the ~~Company Credit Agreement~~Financing, ~~subject~~ provided that such logos are used solely in a manner that is not intended to ~~compliance with Section 6.14(a)(iii)~~or reasonably likely to harm or disparage Seller or its Subsidiaries or the reputation or goodwill of Seller or its Subsidiaries or any of their logos. (f) ~~Notwithstanding anything~~ Seller shall prepare and furnish to Buyer and Parent, as promptly as reasonably practicable (and, in any event, no later than the ~~contrary contained herein~~time periods (if applicable) specified in the definition of “Required Information”), ~~Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate~~ the ~~Merger and the transactions contemplated by this Agreement~~Required Information.

Appears in 3 contracts

Sources: Asset Purchase Agreement (Sequential Brands Group, Inc.), Asset Purchase Agreement (Joe's Jeans Inc.), Asset Purchase Agreement

Financing. (a) ~~Subject to the terms~~ Without limiting Section 6.4, each of Parent OP and ~~conditions of this Agreement,~~ Parent Sub shall ~~use its reasonable best efforts to~~ (and shall cause their Affiliates to) take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable ~~or proper~~ to arrange and ~~obtain~~ consummate the ~~Debt~~ Financing on the terms and conditions described in the ~~Debt Commitment Letter pursuant~~ Parent Revolving Credit Facility (without, for the avoidance of doubt, any requirement to bring any legal action against the ~~terms thereof (~~Lender) , including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) ~~delay or prevent~~ satisfying on a timely basis all terms, covenants and conditions set forth in the ~~funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date~~Parent Revolving Credit Facility, or (y) ~~adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the~~ entering into definitive agreements with respect thereto ~~(provided, that Parent may amend the Debt Commitment Letter~~ on terms and conditions substantially similar to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement. (b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions ~~that are not materially less favorable to~~ contemplated by the Parent ~~than those contained in~~ Revolving Credit Facility and (z) consummating the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to ~~the~~ Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent ~~shall keep the Company informed on a current basis~~ OP will furnish correct and ~~in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company~~ complete copies of all ~~executed Debt Financing Agreements~~such definitive agreements to the Representative promptly upon their execution. (cb) Without limiting the foregoing, Parent ~~agrees to notify~~ OP and Parent Sub shall keep the Company and the Representative informed on a reasonably current basis with respect to all material activity concerning the status of their efforts to arrange and consummate the Financing and shall give the Company and the Representative prompt notice of any material adverse change with respect thereto. Parent OP and Parent Sub agree to provide written notice to the Company and the Representative promptly, and in any event within two (2) Business Days, if at any time ~~prior~~ any financing source that is to ~~the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source~~ be a party to the ~~Debt Commitment Letter~~ Parent Revolving Credit Facility notifies Parent OP or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates Parent Sub in writing that such source no longer intends to provide financing to Parent OP or ~~orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter~~ Parent Sub on substantially the terms set forth therein, or Parent OP or Parent Sub believes in good faith that it will be unable to obtain the Financing on substantially the terms described in the Parent Revolving Credit Facility. None of Parent OP or Parent Sub shall ~~promptly provide~~ amend or alter, or agree to amend or alter, the Parent Revolving Credit Facility in any ~~information~~ manner that would be materially adverse to the Contributors or reasonably ~~requested by~~ likely to prevent or materially impair or delay the ~~Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any~~ consummation of ~~its Affiliates to~~the Contemplated Transactions, without the prior written consent of the ~~Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or~~ Representative. (c) If any portion of the ~~Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof~~ Financing becomes unavailable on terms and ~~prior~~ conditions substantially similar to the ~~Closing~~ terms and conditions contemplated in the Parent Revolving Credit Facility or the Parent Revolving Credit Facility shall be modified in a manner materially adverse to Parent OP, Parent Sub or the Contributors, Parent OP and Parent Sub shall (and shall cause their Affiliates to) obtain and as promptly as reasonably practicable provide the Company and the Representative with a copy of, a new credit facility (the “New Facility”) from ~~consummated offerings or other incurrences of debt~~ alternative sources on terms and conditions substantially similar to the terms (including ~~notes~~with respect to interest rate and fees) by and conditions contemplated in the Parent ~~for all~~ Revolving Credit Facility or any ~~portion~~ other financing of the ~~Debt~~ type permitted by Section 3.F of the Tax Matters Agreements as refinancing of the Financing ~~by reducing commitments~~ (“Alternate Financing”); provided, that such New Facility and such Alternate Financing must (i) provide for aggregate debt financing to Parent OP that has the benefit of the Member Guarantees in an amount equal to $550,000,000 (it being understood that a lesser amount may be required to satisfy the Parent Parties’ obligations under ~~the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter~~this Agreement), (wii) ~~the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents~~ be available to ~~Parent, is sufficient to pay all~~ fund the Special Distribution Amount and other amounts required to be ~~paid in connection with~~ funded from the ~~transactions contemplated by~~ Financing, and (iii) otherwise satisfy the requirements for the Financing under this Agreement. To the extent applicable, Parent OP and Parent Sub shall (and shall cause their Affiliates to) take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to arrange promptly and consummate the Alternate Financing on the terms and conditions described in any New Facility, including (x) satisfying on a timely basis all terms, covenants and conditions set forth in the ~~proceeds~~ New Facility (without, for the avoidance of ~~such debt offerings or other incurrences have been received by Parent in cash~~doubt, any requirement to bring any legal action against the Lender); (y) ~~Parent promptly notifies~~ entering into definitive agreements with respect thereto on terms and conditions substantially similar to the ~~Company of such substitution~~ terms and ~~reduction~~ conditions contemplated by the New Facility; and (z) ~~true, correct and complete copies of each material amendment~~ consummating the Alternate Financing at or ~~modification~~ prior to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the CompanyClosing. In the event ~~any~~ Alternate Financing is obtained and a New ~~Debt Commitment Letter~~ Facility is ~~obtained~~entered into, ~~(i) any reference~~ references in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” applicable Parent Revolving Credit Facility shall be deemed to include the ~~Debt Commitment Letter which is not superseded by a~~ New ~~Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect~~Facility, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) as applicable. Notwithstanding anything to the contrary ~~contained herein~~in this Agreement, ~~Parent’s obligations hereunder are~~ Parent REIT, Parent OP and Parent Sub acknowledge and agree that obtaining the Financing, or any Alternate Financing, is not ~~subject to~~ a condition ~~regarding Parent’s or any of its Affiliates’ obtaining funds~~ to their respective obligations to consummate the ~~Merger~~ Contemplated Transactions at Closing; provided, that the Parent Parties shall not be deemed to have breached Section 6.5(a) if they obtain Alternate Financing in accordance with Section 6.5(c). (d) The Company agrees to use, and to cause the ~~transactions contemplated~~ Group Companies to use, reasonable efforts to provide all cooperation reasonably requested by Parent OP in connection with the Financing (including, as applicable, any Alternate Financing), including without limitation: (i) providing and causing their advisors to provide all available information reasonably deemed reasonably necessary by Parent OP or the Lenders to complete syndication of the Financing, including, but not limited to available financial information that is customarily provided in such financings and is deemed necessary by Parent OP or the Lenders for the consummation of such Financing; (ii) assisting in the preparation and updating of the information memoranda and other materials to be used in connection with the Financing and any related syndication efforts, including, as applicable, participating in due diligence and drafting sessions; (iii) cooperating in procuring any requisite rating for the Financing from an accredited rating agency; (iv) making the officers and advisors of the Group Companies available from time to time to attend and make presentations regarding their respective businesses; and (v) assisting in the preparation of definitive agreements and other certificates and documents, as may be reasonably requested in connection with the foregoing, provided, however, that with respect to all matters described in this ~~Agreement~~Section 6.5(d) no Group Company shall be required to execute any document or make any statements, certifications, or analysis for the benefit of Parent REIT, Parent OP or Parent Sub or any other Person other than documents, statements, certifications and analyses to become effective immediately after the Closing.

Appears in 3 contracts

Sources: Contribution Agreement (Lightstone Value Plus Real Estate Investment Trust, Inc.), Contribution Agreement (Lightstone Value Plus Real Estate Investment Trust, Inc.), Contribution Agreement (Lightstone Value Plus Real Estate Investment Trust, Inc.)

Financing. (a) ~~Subject to the terms and conditions of this Agreement,~~ Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable ~~or proper~~ to arrange and ~~obtain~~ consummate the ~~Debt~~ Financing on the terms and conditions described in the ~~Debt~~ Commitment ~~Letter pursuant to the terms thereof~~ Letter, including (~~including any “market flex” provisions~~i) ~~including~~ using ~~its~~ reasonable best efforts to ~~seek~~ (x) satisfy on a timely basis all terms, covenants and conditions set forth in the Commitment Letter; (y) enter into definitive agreements with respect thereto on the terms and conditions contemplated by the Commitment Letter; and (z) consummate the Financing at or prior to Closing; and (ii) seeking to enforce its rights under the ~~Debt~~ Commitment ~~Letter in the event of a breach thereof by the financing provider(s) thereunder~~Letter. Parent ~~shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver~~ will furnish correct and complete copies of ~~any provision under, the Debt Commitment Letter if~~ all such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company ~~true, complete and correct copies of any such amendment, modification or replacement~~promptly upon their execution. (b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed ~~on a current basis and in reasonable detail of~~ with respect to all material activity concerning the status of ~~its efforts to arrange~~ the ~~Debt Financing, and, promptly following request~~ Financing contemplated by the ~~Company, provide to~~ Commitment Letter and shall give the Company ~~copies~~ prompt notice of ~~all executed Debt Financing Agreements. (c)~~ any material adverse change with respect to such Financing. Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two ~~(2)~~ Business Days, if at any time ~~prior to the Closing Date~~ (i) the ~~Debt~~ Commitment Letter is shall expire or be terminated for any reason, (ii) ~~Parent becomes aware of~~ any ~~breach or default (A) by any Financing Source~~ financing source that is a party to the ~~Debt~~ Commitment Letter ~~or any Debt Financing Agreement or (B) any other party~~ notifies Parent that such source no longer intends to provide financing to Parent on the ~~Debt Commitment Letter or any Debt Financing Agreement if~~terms set forth therein, ~~in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing~~ or (iii) ~~a counterparty indicates~~ for any reason Parent no longer believes in ~~writing or orally~~ good faith that it will ~~not provide, or it refuses~~ be able to ~~provide,~~ obtain all or any portion of the ~~Debt~~ Financing contemplated by the ~~Debt~~ Commitment Letter on the terms ~~set forth~~ described therein~~. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c)~~. Parent shall not, ~~nor~~ and shall it not permit any of its Affiliates to, without the prior written consent of the Company, take or fail to take any action or enter into any ~~transaction~~ transaction, including any merger, acquisition, joint venture, disposition, lease, contract or debt or equity financing, that ~~would~~ could reasonably be expected to materially impair, delay or prevent consummation of ~~all~~ the Financing contemplated by the Commitment Letter or any Alternate Financing contemplated by any Alternate Financing. Parent shall not amend or alter, or agree to amend or alter, the Commitment Letter in any manner that would prevent or materially impair or delay the consummation of Transactions without the prior written consent of the Company. (c) If any portion of the ~~Debt Financing. (d)~~ Financing becomes unavailable on the terms and conditions contemplated in the Commitment Letter or the Commitment Letter shall be terminated or modified in a manner materially adverse to Parent for any reason, Parent shall ~~have~~ use its reasonable best efforts to arrange to obtain alternative financing from alternative sources in an amount sufficient to consummate the ~~right~~ Transactions (“Alternate Financing”) and to ~~substitute~~ obtain, and, if obtained, will provide the ~~net cash proceeds received~~ Company with a copy of, a new financing commitment that provides for at least the same amount of financing as such Commitment Letter as originally issued, to the extent needed to fund the Required Amounts, and on terms and conditions (including termination rights and funding conditions) no less favorable to Parent or Merger Sub than those included in the Commitment Letter (the “New Commitment Letter”). To the extent applicable, Parent shall use its reasonable best efforts to take, or cause to be taken, all things necessary, proper or advisable to arrange promptly and consummate the Alternate Financing on the terms and conditions described in any New Commitment Letter, including (i) using reasonable best efforts to (x) satisfy on a timely basis all terms, covenants and conditions set forth in the New Commitment Letter; (y) enter into definitive agreements with respect thereto on the terms and conditions contemplated by ~~Parent after~~ the ~~date hereof~~ New Commitment Letter; and (z) consummate the Alternate Financing at or prior to the Closing ~~from consummated offerings or other incurrences of debt~~ and (~~including notes~~ii) ~~by Parent for all or any portion of the Debt Financing by reducing commitments~~ seeking to enforce its rights under the ~~Debt~~ New Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event ~~any~~ Alternate Financing is obtained and a New ~~Debt~~ Commitment Letter is ~~obtained~~entered into, ~~(i) any reference~~ references in this Agreement to the ~~“Debt Financing” shall include the debt financing contemplated by the Debt~~ Commitment Letter ~~as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter”~~ shall be deemed to ~~include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter~~ refer to the ~~extent then in effect~~New Commitment Letter, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectas applicable. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.

Appears in 3 contracts

Sources: Merger Agreement, Merger Agreement (Hexion Specialty Chemicals, Inc.), Merger Agreement (Huntsman International LLC)

Financing. (ai) Subject to the terms and conditions of this Agreement, ~~Parent~~ each of Montage and Merger Sub shall use its reasonable best efforts to ~~take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and~~ obtain the ~~Debt~~ Transaction Financing on the terms and conditions (including the flex provisions and taking into account the Marketing Period) described in the ~~Debt~~ Commitment Letter ~~pursuant to~~ at Closing (taking into account the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent Marketing Period), and shall not, without the ~~Company’s~~ prior written ~~consent~~consent of Marigold (which consent shall not be unreasonably withheld, conditioned or delayed), permit any ~~amendment, supplement, replacement~~ amendment or modification to be made to, or any waiver of any provision under, the ~~Debt~~ Commitment ~~Letter if such amendment~~Letter, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent or make less likely the funding ~~in full~~ of the ~~Debt~~ Transaction Financing contemplated by the Commitment Letter (or satisfaction of the conditions precedent to the ~~Debt~~ Transaction Financing) on the Closing ~~Date,~~ Date in any material respect or (y) ~~adversely affect~~ extend or permit the ~~ability~~ extension of ~~Parent to enforce its rights against other parties to~~ the ~~Debt~~ marketing period under the Commitment Letter or (provided that, without the ~~definitive agreements with respect thereto (provided~~consent of Marigold, ~~that Parent~~ Montage may amend the ~~Debt~~ Commitment Letter (x) to favorably modify pricing terms or add ~~or replace~~ additional lenders, ~~lead~~ arrangers, ~~bookrunners, syndication~~ bookrunners and agents or ~~similar entities so long as such action would not reasonably be expected~~ (y) to ~~delay~~ implement or ~~prevent~~ exercise any of the ~~Closing~~“market flex” provisions (including pricing terms) contained in the fee letter executed in connection with the Commitment Letter). ~~Parent~~ Montage shall promptly deliver to ~~the Company true, complete and correct~~ Marigold copies of any such amendment, modification or replacement. For purposes of this Section 6.12, references to “Transaction Financing” shall include the Transaction Financing contemplated by the Commitment Letter as permitted to be amended, modified or replaced by this Section 6.12(a) and references to “Commitment Letter” shall include such documents as permitted to be amended, modified or replaced by this Section 6.12(a). (bii) ~~Parent shall,~~ Each of Montage and Merger Sub shall ~~cause its Affiliates and Representatives to,~~ use its reasonable best efforts (A) to maintain in effect the ~~Debt~~ Commitment ~~Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)~~Letter, (B) to ~~negotiate and~~ enter into definitive agreements with respect to the ~~Debt~~ Commitment Letter ~~(the “Debt Financing Agreements”) on~~ consistent in all material respects with the terms and conditions ~~that are not materially less favorable to Parent than those~~ (including the flex provisions and taking into account the Marketing Period) contained in the ~~Debt~~ Commitment Letter (or on terms no less favorable (taken as a whole) to Montage or Merger Sub than the terms and conditions (including flex provisions) in the Commitment Letter), and (C) to satisfy ~~on a timely basis~~ (or obtain the waiver of) on a timely basis all conditions precedent to funding in the Commitment Letter and such definitive agreements thereto (taking into account the Marketing Period and other than any condition where the failure to be so satisfied is a direct result of Marigold’s failure to furnish information described in Section 6.12(b), ) that are within Montage’s control and ~~in a manner that will not impede the ability of the parties~~ to consummate the ~~Merger, all conditions to receipt of the full amount of the Debt~~ Transaction Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing~~, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time~~. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent Montage shall keep ~~the Company~~ Marigold reasonably informed on a current basis and in reasonable detail of the status of its efforts to arrange the ~~Debt Financing, and, promptly following request by the Company,~~ Transaction Financing and provide to ~~the Company~~ Marigold copies of ~~all executed Debt Financing Agreements. (c)~~ the material definitive agreements for the Transaction Financing. Without limiting the generality of the foregoing, ~~Parent agrees~~ Montage shall give Marigold prompt notice (x) of any material breach or default by any party to ~~notify~~ any of the ~~Company promptly~~Commitment Letter or definitive agreements related to the Transaction Financing of which Montage becomes aware, (y) of the receipt of (A) any written notice or (B) other written communication, in each case from any Financing Source with respect to any actual or potential material breach, default, termination or repudiation by any party to any of the Commitment Letter or definitive agreements related to the Transaction Financing of any provisions of the Commitment Letter or definitive agreements related to the Transaction Financing, and (z) if at any time for any reason Montage believes in good faith that it will not be able to obtain all or any portion of the Transaction Financing on the terms and conditions, in the manner or from the sources contemplated by any of the Commitment Letter or definitive agreements related to the Transaction Financing. As soon as reasonably practicable after any notice by Montage to Marigold of the type described in the immediately preceding sentence, but in any event within two (2) Business ~~Days~~Days of the date Marigold delivers to Montage a written request, ~~if at~~ Montage shall use reasonable best efforts to provide any ~~time prior~~ information reasonably requested by Marigold relating to ~~the Closing Date~~ any circumstance referred to in clause (~~i) the Debt Commitment Letter is terminated for any reason~~x), (iiy) ~~Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement~~ or (Bz) ~~any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability~~ of the ~~Debt Financing~~ immediately preceding sentence; provided, that they need not provide any information believed to be privileged or ~~(iii) a counterparty indicates in writing or orally~~ that ~~it will not provide, or it refuses to provide,~~ is requested for purposes of litigation. If all or any portion of the Transaction Financing becomes unavailable for any reason, and such portion is reasonably required to pay the aggregate Cash Consideration, repay the Retired Debt and pay all fees, expenses and other amounts contemplated to be paid by Montage or Merger Sub pursuant to this Agreement, Montage and Merger Sub shall use their reasonable best efforts to arrange and obtain in replacement thereof alternative debt Transaction Financing ~~contemplated by~~ from alternative sources in an amount sufficient, when taken together with available cash of Montage and any then-available Transaction Financing pursuant to the ~~Debt~~ Commitment Letter, to consummate the Merger with terms and conditions not materially less favorable (taken as a whole) to Montage and Merger Sub than the terms and conditions (taken as a whole) set forth in the Commitment Letter (it being understood for the avoidance of doubt that the foregoing shall not be construed to relieve Montage of its obligations to consummate the transactions contemplated in this Agreement if all conditions set forth in Sections 7.1 and 7.2 shall have been satisfied or waived or shall then be capable of being satisfied) (“Available Transaction Financing”), as promptly as reasonably practicable following the occurrence of such event. Montage shall deliver to Marigold true and complete copies of all commitment letters and fee letters (subject to redactions similar to the redactions made to the fee letter delivered on the ~~terms set forth therein. Parent~~ date hereof) pursuant to which any such alternative source shall ~~promptly~~ have committed to provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the ~~Debt~~ Transaction Financing~~. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings~~ . Notwithstanding anything in this Section 6.12 or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference elsewhere in this Agreement to the contrary, in no event shall the “~~Debt Financing~~reasonable best efforts” of Montage or Merger Sub be deemed or construed to require any such Person to, and no such Person shall ~~include~~ be required to, pay any debt financing fees in the aggregate in excess of those contemplated by the Commitment Letter, or agree to conditionality or economic terms of the debt financing that are (other than as specified in the preceding sentence) materially less favorable than those contemplated by the ~~Debt~~ Commitment Letter (including any “flex” provision therein). (b) With respect to the Transaction Financing, prior to Closing, Marigold shall, and shall cause the Marigold Subsidiaries to, and use reasonable best efforts to cause its and the Marigold Subsidiaries’ respective Representatives to provide to Montage such cooperation in connection with the Transaction Financing as may be reasonably requested by Montage, including: (i) assisting in preparation for and participation, upon reasonable advance notice, in a reasonable number of meetings and calls (including customary one-on-one meetings with parties acting as lead arrangers, bookrunners or agents for, and prospective lenders of, the Transaction Financing), drafting sessions, rating agency presentations, road shows and due diligence sessions (including accounting due diligence sessions) and assisting Montage in obtaining ratings in respect of Montage and public ratings in respect of any debt issued as part of the Transaction Financing from Standard & Poor’s Financial Services LLC and ▇▇▇▇▇’▇ Investors Service, Inc.; (ii) assisting Montage and its potential financing sources in the preparation of (A) customary offering documents, private placement memoranda, bank information memoranda, prospectuses and similar marketing documents for any of the Transaction Financing (including the provision of “backup” support), including the execution and delivery of customary authorization and representation letters in connection with bank information memoranda authorizing the distribution of information to prospective lenders and identifying any portion of such information that constitutes material, nonpublic information regarding Marigold or the Marigold Subsidiaries or their respective securities (in each case in accordance with customary syndication practices) and containing a representation that the public-side version does not include material non-public information about Marigold and its Subsidiaries or their securities and (B) customary materials for rating agency presentations for the Transaction Financing; (iii) delivering to Montage the Required Financial Information; (iv) delivering to Montage and its potential financing sources as promptly as reasonably practicable (x) such information as may be reasonably necessary for the Required Financial Information to remain Compliant and (y) such other pertinent financial and other customary information (including assistance with preparing projections, financial estimates, forecasts and other forward-looking information) to the extent reasonably requested by Montage or identified in paragraphs 7 and 8 of Exhibit D to the Commitment Letter in connection with the preparation of customary offering or information documents to be used for the Transaction Financing, as applicable, and assisting Montage in preparing pro forma (A) balance sheets and related notes as of the most recently completed interim period, and (B) income statements and related notes for the most recently completed fiscal year, for the most recently completed interim period and for the twenty-four (24) month period ending on the last day of the most recently completed four (4) fiscal quarter period ended at least forty-five (45) days before the Closing Date (or ninety (90) days in case such period includes the end of Marigold’s fiscal year), prepared after giving effect to the transactions described in the Commitment Letter as ~~modified pursuant~~ if such transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statements of income) and any other pro forma financial information required by Regulation S-X in connection with the Transaction Financing; provided that none of Marigold, any of the Marigold Subsidiaries or any of their Representatives shall be responsible in any manner for information relating to the proposed debt and equity capitalization that is required for such pro forma financial information; (v) causing its independent registered public accounting firm (x) to cooperate with Montage in connection with the Transaction Financing, including by providing customary “comfort letters” (including customary “negative assurances”) and (y) to provide customary assistance with the due diligence activities of Montage and the financing sources and the preparation of any pro forma financial statements to be included in the documents referred to in clause (iiiv) ~~below~~above, and customary consents to the inclusion of audit reports in any relevant marketing materials, registration statements and related government filings; (iivi) using commercially reasonable efforts to ensure that the Transaction Financing benefits from the existing lending relationships of Marigold and the Marigold Subsidiaries; (vii) assisting to identify the steps for repayment on the Closing Date of the Marigold Credit Facility, the Lunar Notes and other Retired Debt of Marigold, the Marigold Subsidiaries or the Marigold Sharing Companies other than indebtedness which may be mutually agreed and cooperating with any ~~reference~~ back-stop, “roll-over” or termination of any existing letters of credit thereunder (and the release and discharge of all related liens and security interests), by providing to Montage at least three (3) Business Days prior to Closing customary pay-off letters (in ~~this Agreement~~ substantially final form), UCC-3 financing statements, filings with the United States Patent and Trademark and/or Copyright Office, real property mortgage releases, account control agreement termination notices, and other similar and related ancillary agreements as are necessary in connection with the Transaction Financing (it being understood that no such documentation shall become effective until the Effective Time); (viii) using commercially reasonable efforts to obtain such consents, approvals and authorizations required in connection with the Transaction Financing which may be reasonably requested by Montage; (ix) executing and delivering as of, but not effective before, the Effective Time, and subject in each case to the “~~Debt~~ Certain Fund Provisions” in the Commitment Letter~~” shall~~ : customary definitive financing documentation as may be ~~deemed to include~~ reasonably requested by Montage, including pledge and security documents, guarantees, customary officer’s certificates (including, without limitation, delivery of a solvency certificate in customary form), instruments, copies of any existing surveys, UCC financing statements, filings, security agreements, control agreements, title insurance and other matters ancillary to, or required in connection with, the ~~Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time~~ Transaction Financing (including (A) delivering stock certificates for certificated securities and (with transfer powers executed in ~~question~~ blank) of Marigold and ~~each New Debt Commitment Letter~~ its domestic Subsidiaries to the extent ~~then~~ required on the Closing Date by the terms of the Transaction Financing and (B) using commercially reasonable efforts to provide customary regulatory and local counsel legal opinions); (x) taking all corporate actions reasonably requested by Montage that are necessary to permit the consummation of the Transaction Financing (subject in ~~effect~~each case to the “Certain Funds Provisions” in the Commitment Letter), including with respect to corporate actions of the Surviving Corporation to be effected immediately following the Effective Time, and ~~(iii)~~ to permit the cash at Marigold and the Marigold Subsidiaries, if any, to be made available on the Closing Date to consummate the transactions contemplated hereby, including the repayment of outstanding Indebtedness of Marigold and the Marigold Subsidiaries; provided that the foregoing shall not require the adoption of any ~~reference in this Agreement to “fee letter” shall~~ corporate resolutions or actions that would be ~~deemed to include any fee letter relating~~ effective prior to the ~~Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.~~Effective Time; (exi) On at least three (3) Business Days prior to the Closing Date, ~~Parent shall provide~~ providing all ~~funds~~ documentation and other information relating to Marigold and the Marigold Subsidiaries required by applicable “know your customer” and anti-money laundering rules and regulations including the USA PATRIOT Act to ~~effect~~ the ~~repayment~~ extent reasonably requested by Montage; and (xii) reasonable participation by senior officers of ~~all indebtedness under~~ Marigold and its Subsidiaries in the ~~Company Credit Agreement in full in accordance with~~ negotiation of the ~~Company Credit Agreement, subject to compliance with Section 6.14(a)(iii)~~definitive documentation for the Transaction Financing. (fc) Marigold hereby consents to the use of all of its and the Marigold Subsidiaries’ logos in connection with the Transaction Financing, provided that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage Marigold or the Marigold Subsidiaries or the reputation or goodwill of Marigold or any Marigold Subsidiary; and subject to the prior review by, and consent of, Marigold (such consent not to be unreasonably withheld or delayed). Notwithstanding any other provision set forth herein or in any other agreement between Marigold and Montage (or their respective affiliates), Marigold agrees that Montage and its affiliates may share customary projections with respect to Marigold and its business, which are approved for distribution by Marigold, with their potential financing sources and other prospective lenders in connection with any marketing efforts in connection with the Transaction Financing, provided that the recipients of such information agree to customary confidentiality arrangements. Notwithstanding anything to the contrary ~~contained herein~~in this Agreement, ~~Parent’s obligations hereunder are not subject to a condition regarding Parent’s or~~ none of Marigold, any of ~~its Affiliates’ obtaining funds to consummate~~ the ~~Merger and~~ Marigold Subsidiaries, any of the ~~transactions contemplated~~ applicable Marigold Sharing Companies, any of their respective directors or officers or other personnel shall be required by this ~~Agreement.~~S

Appears in 3 contracts

Sources: Merger Agreement (Nexstar Broadcasting Group Inc), Merger Agreement (Media General Inc), Merger Agreement (Nexstar Broadcasting Group Inc)

Financing. (a) Subject to the terms and conditions of this Agreement, each of Holdco and Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things ~~necessary,~~ necessary and advisable ~~or proper~~ to arrange and obtain the ~~Debt~~ Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent Financing Commitments and shall ~~not, without the Company’s prior written consent,~~ not permit any ~~amendment, supplement, replacement~~ amendment or modification to be made to, or any waiver of any provision ~~under~~or remedy under any Financing Commitment; provided, that Parent and Merger Sub may amend or modify the Financing Commitments and/or elect to replace all or any portion of the Debt ~~Commitment Letter if such amendment~~Financing and/or Equity Financing with alternative debt and/or equity financing (the “Alternative Financing”), ~~supplement, replacement, modification~~ in each case so long as (i) the aggregate proceeds of the Financing (as amended or ~~waiver~~ modified) and/or any Alternative Financing will be sufficient for Merger Sub and the Surviving Corporation to pay (A) ~~reduces~~ the aggregate ~~amount of the cash proceeds from the Debt Financing or~~ Merger Consideration, and (B) ~~imposes~~ any other amounts required to be paid in connection with the consummation of the Transactions upon the terms and conditions contemplated hereby and all related fees and expenses associated therewith, (ii) the amendment or modification or the Alternative Financing does not impose new or additional conditions ~~to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing,~~ or otherwise expands, amends or modifies the existing conditions in any ~~other provision of~~ way and (iii) the ~~Debt Commitment Letter in a manner that~~ amendment or modification or the Alternative Financing would not or would not reasonably be expected to (x) prevent or materially delay ~~or prevent~~ the ~~funding in full~~ consummation of the ~~Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date,~~ Transactions or (y) adversely ~~affect~~ impact the ability of Parent or Merger Sub to enforce ~~its~~ their respective rights against the other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing)Financing Commitments. Parent shall promptly deliver to the Company ~~true, complete and correct~~ copies of any such amendment, modification or replacement~~. (b)~~ . In addition, Holdco, Parent ~~shall,~~ and Merger Sub shall ~~cause its Affiliates and Representatives to,~~ use ~~its~~ their respective reasonable best efforts to (Ai) subject to its rights under the first sentence of this Section 6.07(a), maintain in full force and effect the ~~Debt Commitment Letter~~ Financing Commitments until the Transactions are consummated, (~~provided that~~ ii) negotiate any definitive agreements in addition to the ~~Debt Commitment Letter may be amended~~Loan Agreement and as contemplated by the Loan Agreement (including, ~~supplemented~~without limitation, ~~replaced, modified or waived as provided~~ the Company Security Documents defined in ~~this Section 6.13~~the immediately following section (c)), ~~(B)~~ with respect to ~~negotiate~~ the Senior Debt Financing and ~~enter into~~ definitive agreements with respect to the Mezzanine Debt ~~Commitment Letter (~~Financing, and the ~~“Debt~~ Equity Financing ~~Agreements”)~~ on the terms and conditions ~~that are not materially less favorable to Parent than those~~ contained in the ~~Debt~~ Note Purchase Agreement and the Equity Commitment ~~Letter~~Letters, (Ciii) to satisfy on a timely basis ~~(or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger,~~ all conditions ~~to receipt of~~ in the ~~full amount of the Debt~~ Financing ~~at the Closing set forth therein~~ Commitments that are within its control ~~or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to~~ and otherwise comply with its obligations ~~under the Debt Commitment Letter~~thereunder, ~~and~~ (Eiv) to consummate the ~~Debt~~ Financing at or prior to the Effective ~~Time~~Time and (v) assuming all terms and conditions of the Debt Financing have been satisfied, cause the Lender or the Sponsor to fund on the Closing Date the Debt Financing required to consummate the Merger and the other transactions contemplated hereby; provided, that under no circumstance shall Parent or Merger Sub be under any obligation to seek through litigation or other legal proceeding to enforce its rights against any Lender. In the event that all conditions ~~precedent expressly set forth in~~ to funding under the ~~Debt~~ Financing Commitments (other than the Equity Commitment ~~Letter~~ Letters) have been orsatisfied, ~~upon funding of the Debt Financing will be, satisfied~~Holdco, Parent and Merger Sub shall use their respective reasonable best efforts to ~~enforce their rights under~~cause the Sponsor and Mr. Zishen Wu to fund the Equity Financing required to consummate the transactions contemplated under this Agreement, including the Merger in accordance with the terms of this Agreement (including taking enforcement actions to cause such persons to provide such Equity Financing in the event conditions (A) through (D) under Section 9.07(b)(i) have been satisfied). For purposes of this Section 6.07, references to “Financing” shall include the financing contemplated by the Financing Commitments as permitted to be replaced, amended or supplemented by this Section 6.07(a), and ~~cause the~~ references to “Financing ~~Sources~~Commitments” shall include such documents as permitted to be replaced, ~~lenders and the other persons providing~~ amended or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request supplemented by ~~the Company, provide to the Company copies of all executed Debt Financing Agreements~~this Section 6.07(a). (cb) Without limiting the ~~foregoing~~generality of Section 6.07(a), Holdco and Parent ~~agrees to notify~~ shall give the Company ~~promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date~~ prompt notice: (i) ~~the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware~~ of any material breach or default (~~A) by any Financing Source party to the Debt Commitment Letter~~ or any ~~Debt Financing Agreement~~ event or ~~(B) any other party to the Debt Commitment Letter~~ circumstance that, with or ~~any Debt Financing Agreement if~~without notice, ~~in the case~~ lapse of ~~this clause (B)~~time or both, ~~such breach or default would~~ could reasonably be expected to ~~affect the availability~~ give rise to any breach or default) by any party to any Financing Commitment, which would be reasonably likely to result in any condition of the ~~Debt~~ Financing Commitment not to be satisfied or the termination of any Financing Commitment, of which Parent or Merger Sub becomes aware; (ii) of the receipt of any written notice or other written communication from any party to any Financing Commitment with respect to any alleged or potential breach, default, termination or repudiation by any party to any Financing Commitment or any provisions of the Financing Commitment related to the Financing which could result in any condition of the Financing Commitment not to be satisfied or the termination of any Financing Document; (iii) ~~a counterparty indicates in writing~~ of any material dispute or ~~orally~~ disagreement between or among any parties to the Financing Commitment; and (iv) if Holdco, Parent or Merger Sub at any time believes that it will not ~~provide, or it refuses~~ be able to ~~provide,~~ obtain all or any portion of the ~~Debt~~ Financing on the terms, in the manner or from the sources contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the CompanyCommitments. In the event any ~~New~~ portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, (A) Parent shall promptly notify the Company, and (B) Holdco and Parent shall use its reasonable best efforts to arrange to obtain alternative financing from alternative sources on terms not less favorable to Holdco, Parent and Merger Sub (as determined in the reasonable judgment of Parent), in an amount sufficient to consummate the Merger as promptly as possible, but in any event no later than the earlier of (x) thirty (30) days after the originally contemplated Closing Date, or (y) the Termination Date. (c) The Company agrees to provide, and shall cause each Company Subsidiary and each of their respective Representatives to provide to Parent and Merger Sub, all reasonable cooperation as may be requested by Parent or its Representatives in connection with the Debt ~~Commitment Letter is obtained~~Financing and any Alternative Financing, including, without limitation, (i) causing the Company’s independent accountants to provide assistance and cooperation to Parent and its representatives, including participating in drafting sessions and accounting due diligence sessions, assisting in the preparation of any ~~reference in this Agreement~~ pro forma financial statements, providing consent to Parent to use audit reports relating to the Company and the Company Subsidiaries and providing any necessary “~~Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below~~comfort letters”, (ii) assisting in the negotiation of, and executing and delivering, definitive financing documents, including pledge and security documents, and certificates (including a certificate of the chief financial officer of the Company (or any ~~reference in this Agreement~~ of the Company Subsidiaries) with respect to solvency matters before giving effect to the “Debt ~~Commitment Letter” shall~~ Financing or Alternative Financing, the consummation of the Transactions, any matters relating to Parent or any actions to be ~~deemed to include~~ taken from and after the ~~Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter~~ Closing), legal opinions, management representation letters or other documents, to the extent ~~then~~ reasonably requested by Parent and otherwise reasonably facilitating the pledging of collateral or consummation of the Debt Financing or Alternative Financing, (iii) providing reasonable access by Parent and any Debt Financing or Alternative Financing sources, and their respective officers, employees, consultants and advisors (including legal, valuation, and accounting advisors) to the books and records, properties, officers, directors, agents and representatives of the Company and each of the Company Subsidiaries, (iv) obtaining surveys and title insurance reasonably requested by Parent, (v) using commercially reasonable efforts to obtain consents customary for financings similar to the Debt Financing or Alternative Financing, (vi) taking all reasonable actions necessary to (x) permit the prospective lenders involved in ~~effect~~the Debt Financing or Alternative Financing to evaluate the Company’s assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements and (y) establish bank and other accounts and blocked account Contracts and lock box arrangements in connection with the foregoing, and (~~iii~~vii) take all other corporate actions reasonably necessary to permit the consummation of the Debt Financing or Alternative Financing; provided, that (A) none of the Company or any ~~reference in this Agreement to “fee letter”~~ of the Company Subsidiaries shall be ~~deemed~~ required to ~~include~~ become subject to any ~~fee letter relating~~ obligations or liabilities with respect to definitive financing documents, including pledge and security documents prior to the ~~Debt Commitment Letter~~ Closing and none of the Company or any Company Subsidiary shall be required to take any action that is not ~~superseded by any New Debt Commitment Letter at~~ contingent upon the ~~time in question and each New Debt Commitment Letter~~ Closing or that would be effective prior to the Effective Time, (B) nothing herein shall require such cooperation to the extent ~~then in effect. (e) On~~ it would interfere unreasonably with the ~~Closing Date, Parent shall provide all funds required to effect the repayment~~ business and operations of ~~all indebtedness under~~ the Company ~~Credit Agreement in full in accordance with~~ or the Company ~~Credit Agreement, subject to compliance with Section 6.14(a)(iii).~~ Subsidiaries and (fC) ~~Notwithstanding anything to~~ none of the ~~contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s~~ Company or any of ~~its Affiliates’ obtaining funds~~ the Company Subsidiaries shall be required to ~~consummate~~ issue any offering or information document prior to the ~~Merger~~ Effective Time. Notwithstanding any other provision of this Agreement, none of the Company or any of the Company Subsidiaries shall be required to take any action that would subject it to actual or potential liability, to bear any cost or expense or to pay any commitment or other similar fee or make any other payment which the Parent does not agree to reimburse the Company for or incur any other liability or provide or agree to provide any indemnity in connection with the Financing or any of the foregoing prior to the Effective Time. Parent shall, promptly upon request by the Company, reimburse the Company for all reasonable out of pocket costs and expenses incurred by the Company and the ~~transactions~~ Company Subsidiaries in connection with the cooperation of the Company and the Company Subsidiaries contemplated by this ~~Agreement~~Section 6.07 and shall indemnify and hold harmless the Company and the Company Subsidiaries from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with the arrangement of the Debt Financing or Alternative Financing and any information utilized in connection therewith except with respect to any information provided by the Company or any of the Company Subsidiaries. The Company hereby consents to the use of its and the Company Subsidiaries’ logos in connection with the Debt Financing or Alternative Financing; provided, that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or any Company Subsidiary.

Appears in 3 contracts

Sources: Merger Agreement (Full Alliance International LTD), Merger Agreement (Yongye International, Inc.), Merger Agreement (Morgan Stanley)

Financing. (a) ~~Subject to the terms and conditions of this Agreement,~~ Parent shall use its reasonable best efforts to ~~take, or~~ cause to be ~~taken,~~ taken all actions ~~and~~ necessary to ~~do, or cause to be done, all things necessary, advisable or proper to arrange and~~ obtain the Debt Financing on the terms and subject to the conditions described in the Debt Commitment ~~Letter pursuant to the terms thereof (including any “market flex” provisions)~~ Letter, including using its reasonable best efforts ~~to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s~~to: (i) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement. (b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter ~~(provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to~~ and negotiate and enter into definitive agreements with respect to the Debt ~~Commitment Letter~~ Financing (~~the “Debt Financing Agreements”~~A) on the terms and subject to the conditions reflected in the Debt Commitment Letter or (B) on other terms that are acceptable to Parent and would not materially and adversely impact the ability of Parent to consummate the transactions contemplated by this Agreement on a timely basis; (ii) comply on a timely basis with all covenants, and satisfy on a timely basis all conditions, required to be complied with or satisfied by Parent in the Debt Commitment Letter and in such definitive agreements; (iii) cause the Debt Financing to be consummated at such time or from time to time as is necessary for Parent to satisfy its obligations under this Agreement; (iv) pay any and all commitment or other fees in a timely manner that become payable by Parent or Merger Sub under the Debt Commitment Letter following the date of this Agreement, to the extent that the failure to pay such fees would be reasonably expected to adversely impact the availability of the financing thereunder; (v) obtain rating agency approvals to the extent required to obtain the Debt Financing; and (vi) seek to enforce its rights under the Debt Commitment Letter; provided, however, that, notwithstanding anything to the contrary contained in this Agreement: (1) Parent shall have the right to substitute other debt or equity financing for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as such substitute financing is subject to funding conditions that are not materially less favorable to Parent than ~~those contained in~~ the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the funding conditions set forth in the Debt Commitment ~~Letter,~~ Letter and so long as such substitute financing would not materially and adversely impact the ability of Parent to consummate the ~~Debt Financing at~~ transactions contemplated by this Agreement on a timely basis; and (2) Parent shall not be required to, and Parent shall not be required to cause any other Person to, commence, participate in, pursue or ~~prior~~ defend any Legal Proceeding against or involving any of the Persons that have committed to ~~the Closing~~provide any portion of, ~~(D) to comply~~ or otherwise with ~~its obligations under~~ respect to, the Debt ~~Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time~~Financing. In the event ~~that all~~ any portion of the Debt Financing becomes unavailable on the terms and conditions ~~precedent expressly set forth~~ contemplated in the Debt Commitment Letter ~~have been or~~for any reason or the Debt Commitment Letter shall be terminated or modified in a manner materially adverse to Parent for any reason, ~~upon funding~~ Parent shall use its reasonable best efforts to obtain, as promptly as practicable, from the same and/or alternative financing sources alternative financing on terms not materially less favorable to Parent than the terms of the Debt Financing ~~will be, satisfied,~~ in an amount equal to the lesser of (i) an amount sufficient to consummate the Merger and the other transactions contemplated by this Agreement (after taking into consideration the funds otherwise available to Parent and ~~Sub~~ the Acquired Corporations), and (ii) the amount of financing that was contemplated by the Debt Financing Letter on the date of this Agreement. In the event any alternative or substitute financing is obtained by Parent in accordance with the terms of this Section 5.12(a) (the “Alternative Financing”), references in this Agreement to the Debt Financing (including, for avoidance of doubt, the references in this Section 5.12 and Exhibit A, but excluding references in Section 3.6) shall ~~use their reasonable best~~ be deemed to refer to the Alternative Financing, and if a new financing commitment letter is entered into in connection with such Alternative Financing (the “New Commitment Letter”), references in this Agreement to the Debt Commitment Letter (including, for avoidance of doubt, the references in this Section 5.12, but excluding the references in Section 3.6 and in clause “(ii)” of the preceding sentence) shall be deemed to refer to the New Commitment Letter. Parent will provide the Company with a copy of any New Commitment Letter obtained by Parent in connection with an Alternative Financing as promptly as practicable following the execution thereof. (b) Parent shall keep the Company reasonably informed with respect to all material activity concerning the status of the Debt Financing, including the status of Parent’s efforts to ~~enforce their rights~~ comply with its covenants under, and ~~cause~~ satisfy the ~~Financing Sources~~conditions contemplated by, ~~lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under~~ the Debt Commitment Letter and ~~definitive financing agreements~~ shall give the Company prompt notice of any event or change that Parent determines will materially and adversely affect the ability of Parent to ~~fund on or before the Effective Time~~ consummate the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two ~~(2) Business Days~~business days, if at any ~~time prior to the Closing Date~~ time: (i) the Debt Commitment Letter is shall expire or be terminated for any reason, ; or (ii) ~~Parent becomes aware of~~ any ~~breach or default (A) by any Financing Source~~ financing source that is a party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates notifies Parent in writing ~~or orally~~ that ~~it will not provide, or it refuses~~ such source no longer intends to ~~provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter~~ provide financing to Parent on the terms set forth ~~therein. Parent shall promptly provide any information reasonably requested by~~ in the ~~Company relating to any circumstances referred to in this Section 6.13(c)~~Debt Commitment Letter. Parent shall not~~, nor shall it permit any of its Affiliates to~~, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under amend the Debt Commitment Letter ~~following such reduction~~in any manner (including by way of a side letter or other binding agreement, ~~together with other cash and cash equivalents available~~ arrangement or understanding) that would: (A) expand in any material respect, or amend in a manner materially adverse to Parent, ~~is sufficient to pay all amounts required to be paid in connection with~~ the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification conditions to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter; (B) prevent or materially impair or delay the Closing; (C) subject to Parent’s right to obtain substitute financing set forth in Section 5.12(a), reduce the aggregate amount of financing set forth in the Debt Commitment Letter to ~~supplement~~ an amount below the amount needed (in combination with all funds held by or ~~replace~~ otherwise available to Parent and the Acquired Corporations) to consummate the Merger; or (D) to the Knowledge of Parent, materially and adversely impact the ability of Parent to enforce its rights against the other parties to the Debt Commitment Letter. (c) During the Pre-Closing Period, upon the request of Parent, the Company shall, and shall cause its Subsidiaries and the Representatives of the Acquired Corporations to, cooperate reasonably with Parent in connection with Parent’s financing of the Merger, including by: (i) participating in meetings and road shows, if any; (ii) providing on a timely basis information reasonably requested by Parent relating to such financing; (iii) preparing in a timely manner business projections and financial statements (including pro forma financial statements); (iv) assisting in a timely manner in the preparation of offering memoranda, private placement memoranda, prospectuses and similar documents; (v) using its reasonable best efforts to ensure that the syndication efforts of the lead arrangers for the Debt Financing (“or any Alternative ~~Debt~~ Financing~~”). True~~) benefit materially from the existing lending relationships of the Acquired Corporations; (vi) providing such assistance as Parent may reasonably require in procuring a corporate credit rating for Parent from Standard & Poor’s Rating Services and a corporate family credit rating for Parent from ▇▇▇▇▇’▇ Investor Services, ~~correct~~ Inc. at least 30 business days prior to the Closing Date; and ~~complete copies of each alternative financing commitment in respect of such Alternative Debt Financing~~ (~~each~~vii) obtaining the consent of, ~~a “New Debt Commitment Letter”)~~and customary comfort letters from, ~~together with all related fee~~ Ernst & Young LLP (including by providing customary management letters and ~~associated engagement~~ requesting legal letters ~~(solely in the case~~ to obtain such consent) if necessary or desirable for Parent’s use of the ~~fee letter~~Company’s financial statements. Without limiting the generality of the foregoing, ~~with only~~ the ~~fee amounts, pricing, “market flex” provisions~~ Company shall ensure that all financial and other ~~economic terms~~ projections concerning the Acquired Corporations that ~~do not adversely affect~~ are made available to Parent after the ~~enforceability, availability or conditionality of, or the aggregate amount~~ date of ~~proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in~~ this Agreement are prepared in good faith and are based upon assumptions that are reasonable at the time made. Notwithstanding the foregoing: (A) such requested cooperation shall not unreasonably interfere with the ongoing operations of the Acquired Corporations; and (B) no Acquired Corporation shall be required to pay any commitment or other similar fee or incur any other liability in connection with the ~~“Debt Financing” shall include the debt~~ financing contemplated by the Debt Commitment Letter ~~as modified pursuant to clause (ii) below, (ii) any reference in this Agreement~~ prior to the ~~“Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which~~ Effective Time (unless such fee or liability is ~~not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter~~ subject to the ~~extent then~~ immediately succeeding sentence or such fee or liability is conditional on the occurrence of the Effective Time). Parent shall, promptly upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket fees and expenses of the Company’s counsel and the Company’s accountants incurred by the Acquired Corporations in ~~effect~~connection with such requested cooperation, ~~and (iii)~~ and, except in cases involving fraud or intentional misconduct or intentional misrepresentation on the part of any ~~reference in this Agreement to “fee letter” shall be deemed to include~~ of the Acquired Corporations or any ~~fee letter relating to the Debt Commitment Letter that is not superseded by~~ Representative of any ~~New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date~~Acquired Corporation, Parent shall ~~provide all funds required to effect~~ indemnify and hold harmless the ~~repayment~~ Acquired Corporations against any costs, expenses or liabilities incurred by the Acquired Corporations as a result of ~~all indebtedness under~~ any Action against the ~~Company Credit Agreement in full in accordance with~~ Acquired Corporations arising out of any acts performed by the ~~Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein,~~ Acquired Corporations at Parent’s ~~obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by~~ request under this ~~Agreement~~Section 5.12.

Appears in 2 contracts

Sources: Merger Agreement (Foundry Networks Inc), Merger Agreement (Foundry Networks Inc)

Financing. ~~(a) Subject~~ Parent shall use commercially reasonable efforts to obtain the ~~terms~~ financing contemplated by the Commitment Letters or financing from other sources reasonably acceptable to Parent to consummate the Merger and ~~conditions of~~ the transactions contemplated by this Agreement. Until such time as Parent has obtained such financing, Parent shall ~~use its reasonable best efforts to take, or cause to be taken, all actions~~ maintain the Commitment Letters in full force and ~~to do, or cause to be done, all things necessary, advisable or proper to arrange~~ effect and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall ~~not, without the Company’s prior written consent,~~ not permit any ~~amendment, supplement, replacement~~ amendment or modification to be made to, or any waiver of any provision or remedy under, the ~~Debt~~ Commitment ~~Letter~~ Letters, without the prior written consent of the Company, which consent shall not be unreasonably withheld. The Company will not be considered to have unreasonably withheld consent under this SECTION 5.17 if ~~such~~ the amendment, ~~supplement~~modification, ~~replacement~~waiver or action for which consent is requested would, ~~modification or waiver (A) reduces~~ in the ~~aggregate amount~~ reasonable judgment of the ~~cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the~~ Company, jeopardize Parent's receipt of the ~~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 to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions~~ Letters. Notwithstanding anything to the ~~Debt Financing) on the Closing Date~~contrary included in SECTION 4.2(a), or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall ~~promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement. (b) Parent shall~~not, and shall cause ~~its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect~~ the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are Parent Subsidiaries not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, which consent shall not be unreasonably withheld, take any action or enter into any ~~transaction~~ transaction, including, without limitation, any merger, acquisition, joint venture, disposition, lease, contract or debt or equity financing that would ~~reasonably be expected to~~ materially impair, materially delay or prevent ~~consummation of~~ the financing contemplated by the Commitment Letters. Following the date hereof, Parent shall notify the Company if Parent determines, based on Parent's good faith estimates, that all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such ~~offering or other incurrence of debt does~~ financing is not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required reasonably likely to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectconsummated. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.

Appears in 2 contracts

Sources: Merger Agreement (Roadway Corp), Merger Agreement (Yellow Corp)

Financing. Parent has cash available, existing committed borrowing facilities and existing debt commitment letters (athe “Debt Commitment Letter”) ~~Subject~~ which are sufficient to enable it to pay the Closing Consideration and satisfy all of its other payment obligations hereunder as required by and in accordance with this Agreement. Attached to Section 6.7 of the Parent Disclosure Schedule is an accurate and complete copy of the Debt Commitment Letter and the related fee letter (redacted in a customary manner). The Debt Commitment Letter is in full force and effect, enforceable in accordance with its terms, duly authorized by the parties thereto and has not been amended, modified or supplemented in any manner (provided, that Parent may replace or amend the Debt Commitment Letter to add Financing Sources which have not executed the Debt Commitment Letter as of the date hereof, or otherwise replace or amend the Debt Commitment Letter so long as any such replacement or amendment would not (x) expand the conditions precedent to the ~~terms~~ financing as set forth in the Debt Commitment Letter as of the date hereof, (y) be reasonably expected to delay the Closing or (z) reduce the aggregate amount available under the Debt Commitment Letter below an amount that, when combined with Parent’s other sources of funds, is sufficient to pay the Closing Consideration and ~~conditions~~ satisfy all of its other payment obligations hereunder as required by and in accordance with this Agreement). Parent has fully paid (or caused to be paid) any and all commitment fees or other fees under the Debt Commitment Letter that are due and payable on or prior to 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 Parent, nor to the knowledge of Parent, any other party thereto, under the Debt Commitment Letter, and Parent does not believe that it will be unable to satisfy on a timely basis any term or condition of closing to be satisfied by it under the Debt Commitment Letter (and for the avoidance of doubt, Parent ~~shall use its reasonable best efforts to take~~possesses the financial statements of Dakota Growers Pasta Company, ~~or cause~~ Inc. required to be ~~taken, all actions and~~ provided to ~~do, or cause to be done, all things necessary, advisable or proper to arrange and obtain~~ the ~~Debt Financing on the terms and conditions described in~~ financing sources under the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment ~~Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing~~Letter) on or prior to the Closing Date~~, or (y) adversely affect the ability of Parent to enforce its rights against other parties~~ . There are no conditions precedent related to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement. (b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt funding of the full amount of the financing contemplated by the Debt ~~Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the~~ Commitment Letter other than those conditions precedent as expressly set forth in the Debt Commitment Letter. There are no side letters or other agreements, ~~to consummate~~ contracts or arrangements that affect or limit the ~~Debt Financing at or prior to~~ funding of the ~~Closing, (D) to comply with its obligations under~~ full amount of the financing contemplated by the Debt Commitment Letter, ~~and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent~~ other than as expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt FinancingLetter. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference Notwithstanding anything in this Agreement to the ~~“Debt Financing” shall include~~ contrary, Parent understands and acknowledges that under the ~~debt~~ terms of this Agreement, Parent’s obligation to consummate the acquisition is not in any way contingent upon or otherwise subject to Parent’s consummation of any financing ~~contemplated~~ arrangements (including the amendment or other modification of the Credit Agreement or any other existing financing arrangement), or Parent’s obtaining any financing or the availability, grant, provision or extension of any financing to Parent. Parent has, or can derive from information it will have access to, all information required to be delivered pursuant to by Sections 2, 7 and 8 of Annex D of the Debt Commitment Letter ~~as modified pursuant to clause~~ (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter except to the extent ~~then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating~~ that the information pertains to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its ~~Affiliates’ obtaining funds to consummate~~ Subsidiaries and constitutes a part of the ~~Merger and the transactions contemplated by this Agreement~~Required Financial Information).

Appears in 2 contracts

Sources: Merger Agreement (Michael Foods Group, Inc.), Merger Agreement (Post Holdings, Inc.)

Financing. (a) ~~Subject to the terms~~ Each of Parent and ~~conditions of this Agreement, Parent~~ Merger Sub shall use its commercially reasonable ~~best~~ efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable ~~or proper~~ to ~~arrange~~ consummate and obtain the Debt Financing on the terms and conditions described in the Debt Commitment ~~Letter pursuant~~ Letter, including using commercially reasonable efforts to (A) maintain in effect the Debt Commitment Letter, (B) satisfy on a timely basis all conditions applicable to Parent and Merger Sub to obtaining the Debt Financing that are within their control, (C) negotiate definitive agreements with respect thereto on the terms ~~thereof~~ and conditions contained in the Debt Commitment Letter (including any “~~market~~ flex” provisions) ~~including using its reasonable best efforts to seek to~~ and (D) enforce ~~its~~ their rights under the Debt Commitment ~~Letter in~~ Letter. In the event that all the conditions to the Debt Financing have been satisfied or waived, each of ~~a breach thereof by~~ Parent and Merger Sub shall use its commercially reasonable efforts to cause the ~~financing provider(s) thereunder~~lenders providing the Debt Financing to fund the Debt Financing required to consummate the Offer on or prior to such time as Merger Sub is required to accept for payment and pay for shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer. Parent shall not, and shall not permit Merger Sub to, agree to or permit any amendment, replacement, supplement or other modification of, or waive any of its rights under, the Debt Commitment Letter or any definitive agreements related to the Debt Commitment Letter (including any and all fee letters), in each case, without the Company’s prior written consent, ~~permit~~ except any such amendment, ~~supplement~~replacement, ~~replacement~~ supplement or other modification to ~~be made to,~~ or ~~any~~ waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter that amends the Debt Financing in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to prevent or materially impede or delay ~~or prevent~~ the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement. (b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability consummation of the ~~parties to consummate~~ Offer, the ~~Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control~~ Merger or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement. Upon any such amendment, ~~(x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash~~replacement, ~~(y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment~~ supplement or modification to of the Debt Commitment Letter ~~relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero~~ in ~~connection~~ accordance with ~~the preceding sentence~~this Section 6.14(a), the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the term “Debt Commitment Letter” shall ~~be deemed to include~~ mean the Debt Commitment Letter ~~which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect~~as so amended, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Datereplaced, ~~Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full~~ supplemented or modified in accordance with ~~the Company Credit Agreement, subject to compliance with~~ this Section ~~6.14(a)(iii~~6.14(a). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.

Appears in 2 contracts

Sources: Merger Agreement (King Pharmaceuticals Inc), Merger Agreement (Alpharma Inc)

Financing. (a) (i) Subject to the terms and conditions of this Agreement, ~~Parent~~ Purchaser shall use its reasonable best efforts to ~~take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and~~ obtain the Debt Financing on the terms and conditions (including the flex provisions) described in the Debt Commitment Letter pursuant to the terms thereof ~~(including any “market flex” provisions) including using its reasonable best efforts~~ and satisfy the conditions to ~~seek to enforce its rights under~~ the Debt Financing as described in the Debt Commitment Letter ~~in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not~~(including, without limitation, the ~~Company’s prior written consent,~~ repayment of any indebtedness to the extent such repayment is a condition to the Debt Financing) and shall not permit any ~~amendment~~termination, ~~supplement, replacement~~ amendment or modification to be made to, or any waiver of any provision under, or any replacement of, the Debt Commitment Letter if such termination, amendment, ~~supplement~~modification, ~~replacement, modification~~ waiver or ~~waiver~~ replacement (A) reduces (or could have the effect of reducing) the aggregate amount of the ~~cash proceeds from~~ Debt Financing (including by increasing the amount of fees to be paid or original issue discount unless (x) the Debt Financing is increased by a corresponding amount or the Debt Financing is otherwise made available to fund such fees or original issue discount and (y) after giving effect to any of the transactions referred to in clause (x) above, the representation and warranty set forth in Section 6.6 shall be true and correct) or (B) imposes new or additional conditions ~~to the initial funding~~ or otherwise ~~expands~~ expands, amends or modifies any of the conditions to the receipt of ~~the~~ Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment ~~Letter~~ Letter, in a manner that would reasonably be expected to (x) delay or prevent or make less likely the funding ~~in full~~ of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing ~~Date,~~ Date or (y) adversely ~~affect~~ impact the ability of ~~Parent~~ Purchaser to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect ~~thereto (provided,~~ thereto; provided that ~~Parent~~ Purchaser may amend the Debt Commitment Letter to add ~~or replace~~ lenders, lead arrangers, bookrunners, syndication agents or similar entities ~~so long as such action would~~ who had not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement. (b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as ~~modified pursuant~~ of the date hereof provided that such addition does not have the effect set forth in subclauses (A) or (B) of this sentence. Purchaser shall promptly deliver to ~~clause (ii) below~~Seller copies of any such termination, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectamendment, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectmodification, waiver or replacement. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.

Appears in 2 contracts

Sources: Stock Purchase Agreement (Zayo Group LLC), Stock Purchase Agreement (Zayo Group Holdings, Inc.)

Financing. (a) ~~Subject~~ [Reserved]. (b) Neither Parent nor Merger Sub will consent to the terms and conditions of this Agreement, Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, restatement, replacement, supplement, ~~replacement~~ termination, assignment or modification to be made to, or any waiver of any provision (including any condition) or remedy under, ~~the Debt~~ any Commitment Letter or Financing Agreement (or any commitment in respect thereof) without the prior written consent of the Company (which consent will not be unreasonably withheld, delayed or conditioned), if such amendment, restatement, replacement, supplement, ~~replacement~~termination, assignment, modification or waiver would (Ai) ~~reduces~~ reduce the aggregate principal amount of the ~~cash proceeds from~~ Financing to an amount less than that is required to consummate the ~~Debt~~ transactions under this Agreement (after giving effect to Staples Available Financing Sources) (including by changing the amount of fees to be paid or original issue discount of the Financing or similar fees, in each case if such changes would reduce the aggregate principal amount of the Financing) unless Alternative Financing or Staples Available Financing Sources are then made available in the amount of such reduction, (Bii) ~~imposes~~ impose new or additional conditions ~~to the initial funding~~ or any contingencies, or otherwise ~~expands~~ amend, restate, replace, supplement, terminate, assign, modify or expand any ~~of the conditions~~ conditions, to the receipt of the ~~Debt Financing~~Financing on the Closing Date or (iii) individually or in the aggregate with all other amendments, restatements, replacements, supplements, terminations, assignments, modifications or ~~otherwise expands~~waivers, ~~amends or modifies any other provision of the Debt Commitment Letter in a manner that would~~ reasonably be expected to (xA) materially delay or prevent the Offer Closing or the Closing, (B) make the funding ~~in full~~ of the ~~Debt~~ Financing (or satisfaction of the conditions to obtaining the ~~Debt~~ Financing) on less likely to occur at or prior to the ~~Closing Date~~Offer Closing, or (yC) adversely ~~affect~~ impact the ability of each of Parent or Merger Sub to enforce its rights against the other parties to the ~~Debt~~ Commitment ~~Letter~~ Letters or Financing Agreements or delay, prevent or adversely impact the ~~definitive agreements with respect thereto (~~ability of each of Parent or Merger Sub to consummate the Contemplated Transactions; provided, however, that Parent and Merger Sub may (i) amend the ~~Debt~~ Commitment ~~Letter~~ Letters to add ~~or replace~~ lenders, lead arrangers, bookrunners, agents, syndication agents, documentation agents or similar entities who had not executed the Commitment Letters as of the date of this Agreement in accordance with the provisions of the Commitment Letters, (ii) amend or otherwise modify the Commitment Letters to implement any flex provisions applicable thereto or (iii) otherwise amend, modify or replace, or agree to any waivers in respect of, the Commitment Letters so long ~~as such action would not reasonably be expected~~ as, with respect to ~~delay or prevent~~ replacements, the ~~Closing)~~replacement debt commitments otherwise satisfy the terms and conditions of an Alternative Financing set forth below. ~~Parent shall promptly deliver to~~ In the ~~Company true, complete and correct copies~~ event of ~~any~~ such amendment, restatement, replacement, supplement, assignment, modification or ~~replacement~~waiver of any Commitment Letter or Financing Agreement as permitted by the immediately preceding sentence, the financing under such amended, modified, restated, replaced, supplemented, assigned or waived Commitment Letter or Financing Agreement will be deemed to be “Financing” as such term is used in this Agreement. (bc) Parent ~~shall~~shall take, and shall cause its Affiliates to take, or cause to be taken, all actions and ~~Representatives to~~do, ~~use its reasonable best efforts (A)~~ or cause to ~~maintain in effect~~ be done, all things necessary, proper or advisable to arrange and obtain the ~~Debt Commitment Letter (provided that~~ proceeds of the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing ~~Agreements”)~~ on the terms and conditions ~~that are not materially less favorable to Parent than those contained~~ (including any market flex provisions) described in the ~~Debt~~ Commitment ~~Letter~~Letters as promptly as practicable following the date hereof and by no later than the Offer Closing, including executing and delivering the Financing Agreements and all other documents and instruments as may be reasonably required thereunder and: (Ci) using reasonable best efforts to ~~satisfy~~ maintain in effect and comply with the Commitment Letter and the Financing Agreements; (ii) satisfying, or causing their Representatives to satisfy, on a timely basis (~~or obtain~~ and no later than the ~~waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger,~~ Offer Closing) all conditions to ~~receipt~~ the Financing contemplated by the Commitment Letters and the Financing Agreements relating thereto (including by paying any commitment, engagement or placement or other fees or amounts that become due and payable to the extent required to be paid as a condition to the Financing); (iii) accepting (and complying with) to the fullest extent all market flex provisions contemplated by the Commitment Letters and the Financing Agreements; (iv) enforcing its rights (including through litigation) under the Commitment Letters and the Financing Agreements in the event of a breach (or threatened breach in writing) by the ~~full amount of~~ Financing Sources under the ~~Debt~~ Commitment Letters and the Financing Agreements relating in each case thereto; and (v) causing the Financing Sources and any other Persons providing Financing to fund the Financing no later than at the time the Offer Closing ~~set forth therein that are within its control or subject~~ is required to ~~its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior~~ occur pursuant to the ~~Closing,~~ terms and conditions of this Agreement. (Dd) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing Parent will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company reasonably informed on a current basis ~~and in reasonable detail~~ of the status of ~~its~~ Parent’s and Merger Sub’s efforts to ~~arrange~~ obtain the ~~Debt Financing~~Financing and to satisfy the conditions thereof, ~~and, promptly following request by~~ including advising and updating the Company, in a reasonable level of detail, with respect to the status, proposed Closing Date and material terms of the Financing Agreements. Parent will promptly provide to the Company copies of all ~~executed Debt~~ Financing ~~Agreements. (c)~~ Agreements and other documents related to the Financing including any amendment, restatement, replacement, supplement, termination, assignment, modification or waiver thereto. Without limiting the generality of the foregoing, Parent ~~agrees to notify~~ shall give the Company ~~promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date~~ prompt written notice of (i) any actual breach, default (or any event of which Parent or Merger Sub is aware that, with or without notice, lapse of time or both, would reasonably be expected to give rise to any default or breach), termination, cancellation or repudiation by any party to any of the ~~Debt~~ Commitment Letter ~~is terminated for any reason~~or the Financing Agreements, (ii) ~~Parent becomes aware~~ the receipt of any ~~breach~~ written notice or ~~default~~ other written communication from any Financing Source with respect to any (A) actual or potential breach, default, termination, cancellation or repudiation by any ~~Financing Source~~ party to any of the ~~Debt~~ Commitment ~~Letter~~ Letters or any ~~Debt~~ Financing Agreement of any provisions of the Commitment Letters or any Financing Agreement or (B) material dispute or disagreement between or among any ~~other party~~ parties to any of the Commitment Letters or any Financing Agreement with respect to the ~~Debt Commitment Letter~~ conditionality or ~~any Debt~~ amount of the Financing ~~Agreement if, in~~ or the ~~case~~ obligation to fund the Financing or the amount of ~~this clause~~ the Financing to be funded at the Closing (~~B), such breach~~ but excluding ordinary course negotiations) and (iii) the occurrence of an event or ~~default would~~ development that could reasonably be expected to ~~affect~~ materially and adversely impact the ~~availability~~ ability of ~~the Debt Financing~~ Parent or ~~(iii) a counterparty indicates in writing or orally that it will not provide, or it refuses~~ Merger Sub to ~~provide,~~ obtain all or any portion of the ~~Debt~~ Financing contemplated by the ~~Debt~~ Commitment ~~Letter on~~ Letters or any Alternative Financing, in each case, after giving effect to Staples Available Financing Sources. As soon as reasonably practicable, but in any event within two Business Days of the ~~terms set forth therein.~~ date the Company delivers to Parent or Merger Sub a written request, Parent shall promptly provide any information reasonably requested by the Company relating to any ~~circumstances~~ circumstance referred to in ~~this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without~~ the ~~prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of~~ immediately preceding sentence. (e) If all or any portion of the ~~Debt~~ Financing becomes unavailable or could reasonably be expected to become unavailable on the terms and conditions and from the Financing Sources (giving effect to the flex provisions applicable thereto) and Staples Available Financing Sources are not then made available in a corresponding amount, (i) Parent will promptly notify the Company and (ii) Parent will use its reasonable best efforts to obtain alternative financing from the same or alternative sources in an amount sufficient to consummate the Contemplated Transactions (it being understood that the terms of Section 7.05(b) will apply to such alternative financing, and, subject to Section 7.05(f), Parent shall have no obligation to (A) pay fees materially in excess of those contained in the Commitment Letters (including the market flex provisions) or agree to “market flex” terms materially less favorable to Parent than the corresponding market flex terms contained in or contemplated by the Commitment Letters or (B) accept any terms or conditions that are materially less favorable, taken as a whole, to Parent, Merger Sub or the Company than the terms and conditions set forth in the applicable Commitments Letters or Financing Agreements immediately prior to giving effect to the terms of such alternative financing) (“Alternative Financing”) as promptly as practicable following the occurrence of such event. In such event, as applicable: (1) the term “Financing” as used in this Agreement will be deemed to include any such Alternative Financing, (2) the term “Commitment Letters” will be deemed to include any commitment letters and fee letters with respect to any such Alternative Financing and (3) the term “Financing Agreements” will be deemed to include any definitive agreement with respect to the Alternative Financing. (df) Parent ~~shall have~~ and Merger Sub acknowledge and agree that their obligations hereunder are not subject to any conditions regarding Parent’s, Merger Sub’s or any other Person’s ability to obtain the ~~right to substitute the net cash proceeds received by Parent after the date hereof and prior~~ Financing or any Alternative Financing. (g) Prior to the Closing ~~from consummated offerings or other incurrences of debt (including notes)~~ Date, the Company shall use reasonable best efforts to provide, and to cause its Subsidiaries to provide, to Parent and Merger Sub, in each case at Parent’s sole cost and expense, such reasonable cooperation as is customary and reasonably requested by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the ~~transactions contemplated by this Agreement~~consummation of the Financing, including using its reasonable best efforts to (i) provide reasonable and customary assistance with the preparation of appropriate and customary materials for lender presentations, bank information memoranda and similar documents reasonably and customarily required to arrange the Financing, (xii) to the ~~proceeds of such debt offerings~~ extent reasonably requested in writing by Parent at least ten (10) Business Days prior to Closing, to furnish Parent with all reasonable documents or other ~~incurrences~~ information required by bank regulatory authorities with respect to the Financing under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the U.S.A. Patriot Act of 2011, relating to the Company or any of its Subsidiaries, (iii) have ~~been received~~ the Company designate members of senior management of the Company to execute customary authorization letters with respect to Company information included in a customary confidential information memorandum for a syndicated bank financing and cause management of the Company to participate in a reasonable number of meetings or presentations, between senior management and the Financing Sources, (iv) to the extent timely requested by Parent ~~in cash~~and required under the Commitment Letter, ~~(y)~~ to obtain documents reasonably requested by Parent ~~promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment~~ or ~~modification~~ its Financing Sources relating to the ~~Debt Commitment Letter relating thereto will be promptly provided to~~ repayment of the ~~Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations~~ existing indebtedness of the Company and its Subsidiaries ~~pursuant~~ and the release of related liens and related guarantees, including customary payoff letters, (v) assist in the preparation of definitive financing documents, including guarantee and collateral documents and customary closing certificates as may be required by the Financing and (vi) use reasonable best efforts to (A) subject to Section ~~6.14 shall no longer be~~ 7.08, permit the prospective lenders involved in ~~effect. Further~~the Financing to evaluate the Company and its Subsidiaries’ current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements, (B) cooperate with Parent ~~shall have the right~~ to ~~substitute commitments in respect of~~ establish bank and other ~~financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash~~ accounts and ~~cash equivalents available to Parent, is sufficient to pay all amounts required to be paid~~ blocked account agreements and lock box arrangements in connection with the ~~transactions contemplated by this Agreement~~ foregoing and ~~all conditions precedent~~ (C) permit representatives of the prospective lenders to ~~funding~~ conduct commercial field examinations, inventory and intellectual property appraisals, Phase I environmental assessments and an appraisal of ~~such financing are~~the owned real property, and make audits and appraisals delivered for the purposes of any credit facility available to Parent for purposes of its Financing. Such requested cooperation shall not, in ~~respect~~ the Company’s reasonable judgment, unreasonably interfere with the ongoing business or operations of ~~certainty of funding, equivalent to (or more favorable to~~ the Company ~~than)~~ and any of its Subsidiaries. The Company and its counsel shall be given reasonable opportunity to review and comment upon any bank information memoranda, lender presentations or similar documents that include information about the ~~conditions precedent set forth~~ Company or any of its Subsidiaries prepared in connection with the ~~Debt Commitment Letter~~Financing, ~~to supplement or replace the Debt Financing (“Alternative Debt Financing”). True~~and Parent shall include in such memoranda, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions documents and other ~~economic terms that do not adversely affect the enforceability~~materials, ~~availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to~~ comments reasonably proposed by the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained ~~herein~~in this Agreement, neither the Company nor any of its Subsidiaries shall be required to (A) pay any commitment or other similar fee, (B) incur any liability of any kind (or cause their respective Representatives to incur any liability of any kind) prior to the Merger Effective Time, (C) enter into or approve (or commit to enter into or approve) any certificate, document, agreement, instrument or Financing Agreement, in each case which will be effective prior to the Merger Effective Time, (D) take any action that would (i) unreasonably interfere with the ongoing operations of the Company or any of its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached, (iii) cause any director, officer or employee of the Company or any of its Subsidiaries to incur any personal liability, (iv) conflict with the organizational documents of the Company or any of its Subsidiaries or any Applicable Law or (v) result in the contravention of, or could reasonably be expected to result in a violation or breach of, or a default under, any contract to which the Company or any of its Subsidiaries is a party, (E) provide access to or disclose information that the Company determines would jeopardize any attorney-client privilege of the Company or any of its Subsidiaries, (F) (i) provide any audited or unaudited financial statements (including separate financial statements for any Subsidiary) other than the Company SEC Documents, (ii) prepare any pro forma financial information (including pro forma cost savings synergies, capitalization or other pro forma adjustments desired to be incorporated into any pro forma financial information), (iii) change any fiscal period or (iv) provide financial or other information regarding the Company or its Subsidiaries that is not in the possession of the Company or any of its Subsidiaries or (G) issue any offering or information document or provide any legal opinion or other opinion of counsel or any solvency certificate that would become effective prior to Closing (it being understood that any solvency certificate would not cover Staples and its Subsidiaries after giving effect to the transactions contemplated under this Agreement). (h) The Company hereby consents to the reasonable use of all logos of the Company in connection with the Financing so long as such logos are used (i) solely in connection with a description of the Company, its business and products or the Merger and (ii) solely in a manner that is reasonable and customary for such purposes and that is not intended to or reasonably likely to harm or disparage or otherwise adversely affect the Company or any of its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries or any of their respective products, services, offerings or intellectual property rights, and Parent shall make any modifications to such use requested by the Company. Any bank information memoranda, lender presentations or other documents prepared by or on behalf of or used by Parent~~’s obligations hereunder are not subject to a condition regarding Parent’s~~ , any of its Affiliates, or any Financing Source or any of its Affiliates~~’ obtaining funds~~ , in Parent’s financing activities in connection with the Contemplated Transactions or any Financing or Alternative Financing that include any information provided by the Company, its Affiliates, or their respective Representatives, shall include a conspicuous disclaimer to ~~consummate~~ the ~~Merger~~ effect that none of the Company, its Affiliates, or their respective Representatives has any responsibility for the content of such document and ~~the transactions contemplated by this Agreement.~~that th

Appears in 2 contracts

Sources: Merger Agreement (Essendant Inc), Merger Agreement (Staples Inc)

Financing. (a) Subject to the ~~terms~~ satisfaction of the condition set forth in Sections 4.01 and ~~conditions of this Agreement~~4.02, Parent shall ~~use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain~~ provide Sub with the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof equity financing contemplated by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacementLetters. (b) Parent and Sub shall, and shall cause ~~its Affiliates~~ their respective officers, directors, employees, affiliates, financial advisors and ~~Representatives~~ other representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to ~~enforce their rights under,~~ arrange as promptly as practicable and ~~cause~~ (subject only to the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail simultaneous consummation of the ~~status~~ transactions contemplated hereby) to complete the financing contemplated by (i) the Credit Facility (as defined in the Commitment Letters) on the terms set forth in the Commitment Letters and, to the extent not set forth in the Commitment Letters, on such terms as are reasonably satisfactory to Parent and (ii) the issuance and sale of ~~its~~ $150 million principal amount of senior subordinated notes on the terms set forth in the Commitment Letters and, to the extent not set forth in the Commitment Letters, on such terms as are reasonably satisfactory to Parent; provided, that if the issuance and sale of such senior subordinated notes is not completed by the later of (A) the date of the Stockholders' Meeting and (B) 90 days after the date hereof, then thereafter Parent and Sub shall be obligated to use their reasonable best efforts to ~~arrange~~ consummate as promptly as practicable prior to the ~~Debt Financing~~Outside Date, the financing pursuant to the Bridge Loan Facility (as defined in the Commitment Letters) on the terms set forth in the Commitment Letters and, ~~promptly following request by the Company, provide~~ to the ~~Company copies of all executed Debt Financing Agreements~~extent not set forth in the Commitment Letters, on terms reasonably satisfactory to Parent. (c) ~~Without limiting~~ Except to the ~~foregoing~~extent the Company shall otherwise consent in writing, Parent ~~agrees to notify the Company promptly,~~ and Sub will not modify or amend in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on material respect the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or ~~the aggregate amount of proceeds available~~ cancel or waive any material right under, the ~~Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt~~ Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectLetters. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.

Appears in 2 contracts

Sources: Merger Agreement (Cpi Corp), Merger Agreement (Essman Alyn V)

Financing. (a) Subject to the terms and conditions of this Agreement, ~~Parent~~ Buyer shall use its reasonable best efforts to ~~take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and~~ obtain the ~~Debt~~ Financing on the terms and conditions described in the ~~Debt Commitment Letter pursuant~~ Financing Letter, after giving effect to the market flex terms ~~thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter~~ in the ~~event of a breach thereof by the financing provider(s) thereunder. Parent~~ Fee Letter, and shall ~~not, without the Company’s prior written consent,~~ not permit any ~~amendment, supplement, replacement~~ amendment or modification to be made toto (other than to amend the Financing Letter to add lenders, lead arrangers, book runners, syndication agents or similar entities who had not executed the Financing Letter as of the date of this Agreement), or any waiver of any provision or remedy under, the ~~Debt Commitment~~ Financing Letter or the Fee Letter, if such amendment~~, supplement, replacement~~, modification or waiver (Ai) reduces the aggregate amount of the ~~cash proceeds from the Debt~~ Financing or (Bii) imposes new or additional conditions ~~to the initial funding~~ or other terms or otherwise ~~expands~~ expands, amends or modifies any of the conditions to the receipt of the ~~Debt Financing,~~ Financing or ~~otherwise expands, amends or modifies any~~ other ~~provision of the Debt Commitment Letter~~ terms in a manner that would reasonably be expected to (x) delay or prevent the Closing (y) make the timely funding ~~in full~~ of the ~~Debt~~ Financing (or satisfaction of the conditions to obtaining the ~~Debt Financing) on the Closing Date,~~ Financing less likely to occur or (yz) adversely ~~affect~~ impact the ability of ~~Parent~~ Buyer to enforce its rights against the other parties to the ~~Debt Commitment~~ Financing Letter or the definitive agreements with respect ~~thereto (~~thereto; provided that Buyer shall have the right to substitute other financing for all or any portion of the Financing from the same and/or alternative financing sources; provided, further, that ~~Parent may amend~~ such substitution shall only be permitted if (i) the ~~Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action~~ terms thereof would not be reasonably expected to delay or prevent the Closing or make the timely funding of the Financing or satisfaction of the conditions to obtaining the Financing less likely to occur and (ii) the conditions to the Financing set forth in the Financing Letter would not be expanded or modified in a manner that would reasonably be expected to delay or prevent the Closing~~). Parent shall promptly deliver to the Company true~~, ~~complete and correct copies of~~ provided, still further, that any such ~~amendment~~substitute financing shall not obligate any of Seller or its Affiliates as a surety, ~~modification~~ guarantor or ~~replacement~~indemnitor or to extend credit to any Person. Any reference in this Agreement to (A) “Financing,” shall include the financing contemplated by the Financing Letter as amended or modified in compliance with this Section 6.9(a) and (B) “Financing Letter,” and “Fee Letter” shall include such documents as amended or modified in compliance with this Section 6.9(a). (b) ~~Parent shall, and~~ Buyer shall ~~cause its Affiliates and Representatives to,~~ use its reasonable best efforts (Ai) to maintain in effect the ~~Debt Commitment~~ Financing Letter ~~(provided that~~ in accordance with the ~~Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)~~terms and subject to the conditions thereof, (Bii) to negotiate and enter into all definitive agreements with respect to the ~~Debt Commitment Letter (the “Debt~~ Financing ~~Agreements”)~~ on the terms and conditions ~~that are not materially less favorable to Parent than those~~ contained in the ~~Debt Commitment~~ Financing Letter, including the market flex provisions in the Fee Letter, and (Ciii) to satisfy ~~on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger,~~ all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to such definitive agreements and consummate the ~~Debt~~ Financing at or prior to the Closing~~, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time~~. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent Buyer shall keep ~~the Company informed on a current basis and in reasonable detail~~ Seller reasonably apprised of the status of ~~its efforts~~ the Financing and developments with respect thereto (including giving Seller prompt notice of any material change with respect to ~~arrange the Debt~~ such Financing~~, and, promptly following request by the Company,~~ ) and shall provide to ~~the Company~~ Seller copies of all ~~executed Debt Financing Agreements. (c)~~ material definitive documents related to the Financing. Without limiting the generality of the foregoing, ~~Parent~~ Buyer agrees to notify ~~the Company~~ Seller promptly, and in any event within two (2) Business Days, if at any time ~~prior to the Closing Date~~ (ix) the ~~Debt Commitment~~ Financing Letter is shall expire or be terminated for any reason, (iiy) ~~Parent becomes aware~~ any of ~~any breach or default (A) by any Financing Source party~~ the other parties to the ~~Debt Commitment~~ Financing Letter ~~or any Debt Financing Agreement or (B) any other~~ notify Buyer that such party no longer intends to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter provide financing on the terms set forth ~~therein. Parent~~ therein or (z) to Buyer’s knowledge (without a requirement of due inquiry), any of the other parties to the Financing Letter is or is alleged to be in breach or default thereunder. (c) To the extent necessary to complete the transactions contemplated hereby, Buyer shall ~~promptly provide any information reasonably requested~~ use its reasonable best efforts to cause the parties providing Financing to fund on the Closing Date the Financing required to consummate the transactions contemplated hereby and the other transactions contemplated by the ~~Company relating~~ Financing Letter, including by taking enforcement action, if all conditions in the Financing Letter and all conditions to ~~any circumstances referred to~~ Closing contained in this ~~Section 6.13(c). Parent shall not~~Agreement are satisfied or waived, ~~nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action~~ or ~~enter into any transaction that would reasonably~~ upon funding will be ~~expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing~~satisfied. (d) ~~Parent~~ If the Financing Letter shall ~~have~~ be terminated or modified in a manner materially adverse to Buyer, if the ~~right to substitute~~ Financing Letter shall be materially breached or repudiated by the ~~net cash proceeds received by Parent after the date hereof and prior~~ other parties to the ~~Closing from consummated offerings~~ Financing Letter, or ~~other incurrences of debt (including notes) by Parent for all or~~ if any portion of the ~~Debt~~ Financing ~~by reducing commitments under~~ becomes unavailable on the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash terms and ~~cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions~~ conditions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the ~~Debt Commitment Letter~~Financing Letter (other than as a result of obtaining substitute debt financing in accordance with Section 6.9(a)) (such event, ~~to supplement or replace the Debt~~ an “Original Financing ~~(“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter~~Failure”), ~~together with all related fee letters~~ Buyer shall use its reasonable best efforts to arrange promptly to obtain alternative financing from alternative sources on terms and ~~associated engagement letters (solely~~ conditions not less favorable to Buyer than those contained in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing ~~contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment~~ Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the ~~transactions contemplated by this Agreement.~~Fee Letter and in an amount at least

Appears in 2 contracts

Sources: Purchase and Sale Agreement (Laclede Group Inc), Purchase and Sale Agreement (Laclede Gas Co)

Financing. (a) ~~Subject~~ Parent’s, US Corp.’s and Merger Sub’s obligations hereunder are not subject to any conditions regarding Parent’s, US Corp.’s, Merger Sub’s or any other person’s ability to finance, or obtain financing for, the ~~terms~~ Transactions. (b) From and ~~conditions~~ after the execution of this Agreement, ~~Parent~~ Parent, US Corp. and Merger Sub shall use ~~its~~ their respective reasonable best efforts to ~~take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to~~ arrange ~~and obtain~~ the ~~Debt~~ Financing on the terms and conditions described in the ~~Debt Commitment~~ Financing Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent and shall ~~not, without the Company’s prior written consent,~~ not permit any ~~amendment, supplement, replacement~~ amendment or modification to be made to, any replacement of all or any portion of any facilities (or commitments thereof) described in, or any waiver of any provision or remedy under, the ~~Debt Commitment Letter~~ Financing Letter, if such amendment, ~~supplement~~modification, ~~replacement, modification~~ replacement or waiver (Ai) reduces the aggregate amount of the ~~cash proceeds from~~ Financing (including by changing the ~~Debt~~ amount of fees to be paid or original issue discount except by operation of the “flex” provisions in the related fee letter) unless such reduction is replaced with Replacement Financing or cash on hand or (Bii) imposes new or additional conditions ~~to the initial funding~~ or otherwise ~~expands~~ expands, amends or modifies any of the conditions to the receipt of ~~the Debt Financing, or otherwise expands, amends or modifies~~ any ~~other provision~~ portion of the ~~Debt Commitment Letter~~ Financing in a manner that would or would reasonably be expected to (xA) delay or prevent the Closing or the Closing Date, (B) make the funding ~~in full~~ of the ~~Debt~~ Financing (or satisfaction of the conditions to obtaining the ~~Debt~~ Financing) ~~on the Closing Date,~~ less likely to occur or (yC) adversely ~~affect~~ impact the ability of ~~Parent~~ Parent, US Corp. or Merger Sub, as applicable, to enforce ~~its~~ their rights against other parties to the ~~Debt Commitment~~ Financing Letter or the definitive agreements to be entered into with respect ~~thereto~~ to the Financing, including any right to seek specific performance of the Financing Letter or such definitive agreements. Subject to the limitations set out in the first sentence of this Section 6.12(b), Parent, US Corp. and Merger Sub may (~~provided~~1) amend, ~~that Parent may amend~~ supplement, modify, replace or substitute the ~~Debt Commitment~~ Financing Letter as in effect at the date hereof, including to (x) add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities ~~so long~~ who had not executed the Financing Letter as of the date of this Agreement, (y) increase the amount of Indebtedness and (z) replace all or a portion of the facility committed under the Financing Letter as in effect as of the date hereof with one or more new facilities under such ~~action would not reasonably~~ Financing Letter or under any new commitment letter or facility or (2) replace all or a portion of the Financing with substitute or replacement debt financing or equity financing (consistent with the equity financing described in Section 4.02(a) of the Parent Disclosure Letter) (any such new commitment or facility described in clause (z) above or Financing described in clause (2) above, a “Replacement Financing”), provided that any amendments, modifications or replacements of any Replacement Financing shall be ~~expected~~ subject to ~~delay or prevent~~ the ~~Closing~~same limitations that apply to the Financing Letter as set forth in the first sentence of this Section 6.12(b). ~~Parent~~ From and after the execution of this Agreement, Parent, US Corp. and Merger Sub shall ~~promptly deliver~~ use their respective reasonable best efforts to obtain a corporate credit rating from each of Standard & Poor’s Ratings Services and ▇▇▇▇▇’▇ Investor’s Services, Inc. (c) Subject to the ~~Company true~~terms and conditions of this Agreement, ~~complete~~ each of Parent, US Corp. and ~~correct copies of any such amendment, modification or replacement. (b) Parent shall, and shall cause its Affiliates and Representatives to,~~ Merger Sub will use its reasonable best efforts ~~(A)~~ to maintain in effect the ~~Debt Commitment~~ Financing Letter pursuant to its terms until the Merger is consummated and to obtain the Financing on the terms and conditions described in the Financing Letter, including using its reasonable best efforts (~~provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B~~i) to negotiate and enter into definitive agreements with respect ~~to the Debt Commitment Letter (the “Debt Financing Agreements”)~~ thereto on the terms and conditions ~~that are not materially less favorable to Parent than those~~ contained in the ~~Debt Commitment Letter~~Financing Letter (including any applicable “flex” provisions contained in the related fee letter), (Cii) to satisfy all conditions on a timely basis ~~(or obtain~~ to obtaining the ~~waiver of)~~Financing applicable to each of Parent, US Corp. and ~~in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing~~ Merger Sub set forth ~~therein~~ in such definitive agreements that are within its ~~control or~~ control, (iii) to comply in all respects with its covenants and obligations under the Financing Letter and (iv) subject to Section 6.07, to enforce through exercise of all available remedies its ~~influence and,~~ rights under the Financing Letter in the event of a breach or other failure to fund by the Lenders. Parent shall give the Company prompt notice upon ~~satisfaction~~ becoming aware of any of the ~~conditions set forth~~ following: (A) any material breach or default of the Financing Letter by a party to the Financing Letter or definitive document with respect to the Financing of which they become aware; (B) the receipt of any written notice or other written communication from any Financing Source with respect to any breach, default, termination or repudiation by any party to the Financing Letter or any definitive document related to the Financing of any provisions of the Financing Letter or any definitive document related to the Financing and (C) if for any reason Parent, US Corp. or Merger Sub believes in good faith that they will not be able to obtain all or any portion of the ~~Debt Commitment Letter,~~ Financing required to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt FinancingTransactions. Parent shall keep the Company informed on a ~~current~~ reasonable basis and in reasonable detail of the status of its efforts to arrange the ~~Debt~~ Financing and provide to the Company, upon its written request, copies of the definitive material documents related to the Financing (other than fee letters and any other documentation subject to confidentiality restrictions). Notwithstanding the foregoing, nothing in this Section 6.12(c) shall require Parent to disclose any information that is subject to attorney-client or similar privilege if Parent shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Subject to the terms and conditions of this Agreement, in the event that all conditions in the Financing Letter have been satisfied or, upon funding, will be satisfied, Parent, US Corp. and Merger Sub shall use their reasonable best efforts to cause the Lenders to fund on the Closing Date the Financing required to consummate the Merger, the Subsequent Merger and the other Transactions. In the event that Parent, US Corp. or Merger Sub becomes aware of any event or circumstance that makes procurement of any portion of the Financing unlikely to occur in the manner or from the sources contemplated in the Financing Letter, Parent, US Corp. or Merger Sub shall, in addition to promptly notifying the Company in writing of such event or circumstance, use their respective reasonable best efforts to, as promptly as practicable, arrange any such portion (other than amounts that are replaced by Parent’s cash on hand and marketable securities) from alternative sources (such portion from alternate sources, the “Alternate Financing”) in an amount sufficient to consummate the transactions contemplated hereby; provided, however, that Parent, US Corp. and Merger Sub shall not be required to agree to terms and conditions (including any “flex” provisions) that are, in the aggregate, materially less favorable to Parent, US Corp. and Merger Sub than those contained in the Financing Letter (and the “flex” provisions contained in the related fee letter). For the avoidance of doubt, the syndication of any part of the Financing in accordance with the terms of the Financing Letter shall not be deemed to violate Parent’s obligations under this Agreement. (d) Prior to the Closing, the Company shall provide, and shall cause the Company Subsidiaries to provide, and shall use its reasonable best efforts to cause its and their Representatives, officers and employees to provide, on a timely basis, all reasonable cooperation requested by Parent in connection with the arrangement of the Financing to the extent that such cooperation does not unreasonably interfere with the ongoing operations of the Company and the Company Subsidiaries, including (i) using reasonable best efforts to facilitate the provision of guarantees and pledge of collateral (effective as of the actual occurrence of Closing), (ii) providing customary financial and other pertinent information regarding the Company and the Company Subsidiaries and cooperating in the preparation of pro forma financial information for the Transactions (including information to be used in the preparation of an information package, offering memorandum, prospectus, prospectus supplement or similar document regarding the business, assets, operations, financial projections and prospects of Parent and the Company customary for such financing or reasonably necessary for the completion of the Financing), including the financial information required to be delivered pursuant to the Financing Letter and such other information as may be reasonably requested in writing by Parent to assist in preparation of customary offering or information documents to be used for the completion of the Financing, ~~and~~(iii) reasonably cooperating with the marketing efforts for the Financing (it being acknowledged that the Company hereby consents to the reasonable use of the Company’s and the Company Subsidiaries’ logos provided that such logos are used in a manner that is not reasonably likely to harm or disparage the Company or their marks and on such other customary terms and conditions as the Company shall reasonably impose) and using commercially reasonable efforts to provide an introduction and access to the Company’s existing lenders in connection with any syndication efforts, (iv) providing copies of any recent appraisals, environmental reports, evidence of title (including copies of deeds, lease documentation, title insurance policies and/or commitments for title insurance, title opinions, surveys, and similar information), and similar information with respect to the properties and assets of the Company and the Company Subsidiaries that are in the Company’s possession and that are reasonably requested by Parent, (v) providing other reasonably requested customary certificates, opinions or documents, including a customary certificate of the principal financial officer of the Surviving Company (in his capacity as such) with respect to solvency matters, (vi) requesting such customary legal opinions and customary accountant comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) as may be reasonably requested by Parent, (vii) participating in a reasonable number of meetings (including customary one-on-one meetings with the parties acting as lead arrangers or underwriters, as applicable, for the Financing and their counsel and senior management and Representatives, with appropriate seniority and expertise, of the Company), presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies as are customary and reasonably requested by Parent, (viii) providing reasonable and customary assistance to Parent and its financing sources or underwriters, as applicable, in (A) the preparation of all credit agreements (including review of schedules for completeness), currency or interest hedging agreements or other agreements, offering documents, an offering memorandum, prospectus or prospectus supplement and other marketing and rating agency materials for the Financing or (B) the amendment or termination of any of the Company’s or the Company Subsidiaries’ existing credit agreements, currency or interest hedging agreements, or other agreements and the release of all collateral and termination of all security interests thereunder (including by negotiating a payoff letter in customary form satisfactory to Parent with respect to any and all obligations of the Company and the Company Subsidiaries under their existing credit facilities, a copy of which shall be delivered to Parent no less than five Business Days prior to the Closing Date), in each case, on terms satisfactory to Parent and that are reasonably requested by Parent in connection with the Financing provided that no obligation of the Company or any of the Company Subsidiaries under any such agreements or amendments shall be effective until the actual occurrence of the Effective Time, in each case it being understood and agreed that information and documents provided by the Company and the Company Subsidiaries may be delivered to the Financing Sources and their Representatives, (ix) using reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, including in connection with due diligence and preparation of pro forma financial information for the Transactions, (x) using reasonable best efforts to permit any cash and marketable securities of the Company and the Company Subsidiaries to be made available to Parent, US Corp. and Merger Sub at the Closing, (xi) cooperating reasonably with Parent’s financing sources’ or underwriters’, as applicable, due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company, (xii) furnishing Parent and the financing sources promptly ~~following~~ (and in any event no later than ten days prior to the Closing Date) with all documentation and other information required by any Governmental Entity with respect to the Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, (xiii) providing customary authorization letters to the financing sources authorizing the distribution of information to prospective lenders and other Financing Sources, and (xiv) to the extent reasonably requested by Parent, adopting customary corporate resolutions by the Company and the Company Subsidiaries to permit the completion of the Financing. All non-public or other confidential information provided by the Company or any of its Representatives pursuant to this Section 6.12 shall be (1) kept confidential in accordance with the Confidentiality Agreement, except that Parent and US Corp. shall be permitted to disclose such information to potential financing sources and to rating agencies during the syndication and marketing of the Financing subject to customary confidentiality undertakings by such potential financing sources and (2) supplied only to financial institutions or rating agencies or any of their respective representatives for use in connection with the Financing. Parent shall (A) promptly, upon request by the Company, ~~provide to~~ reimburse the Company ~~copies~~ for all reasonable and documented out-of-pocket costs (including reasonable and documented attorneys’ fees) incurred by the Company or any of the Company Subsidiaries in connection with the cooperation of the Company and the Company Subsidiaries contemplated by this Section 6.12 and (B) indemnify and hold harmless the Company, the Company Subsidiaries and their respective Representatives from and against any and all ~~executed Debt~~ reasonable and documented out-of-pocket losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with Third Party claims arising out of the arrangement of the Financing ~~Agreements~~and any information used in connection therewith, except with respect to any information provided in writing by the Company or any of the Company Subsidiaries or contained in the Company SEC Documents. (ce) ~~Without limiting~~ For purposes of this Agreement, the ~~foregoing, Parent agrees~~ term “Financing” shall also be deemed to ~~notify the Company promptly, and in~~ include any ~~event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any~~ Alternate Financing ~~Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if~~and, in the case of ~~this clause (B~~Section 6.12(d), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Replacement Financing, ~~together with other cash~~ and ~~cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with~~ the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt term “Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall also be deemed to include any ~~fee~~ amendment, replacement, supplement or other modification thereto or waiver thereof permitted pursuant to this Section 6.12 and any commitment letter ~~relating~~ (or similar agreement) with respect to ~~the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect~~such Alternate Financing. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.

Appears in 2 contracts

Sources: Merger Agreement (SXC Health Solutions Corp.), Merger Agreement (Catalyst Health Solutions, Inc.)

Financing. (a) ~~Subject to the terms~~ Parent and ~~conditions of this Agreement, Parent~~ Opco shall use ~~its~~ commercially reasonable ~~best~~ efforts to ~~take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to~~ arrange ~~and obtain~~ the ~~Debt~~ Bank Financing on the terms and conditions described in the ~~Debt~~ Commitment ~~Letter pursuant to the terms thereof (including any “market flex” provisions)~~ Letter, including using ~~its~~ commercially reasonable ~~best~~ efforts (i) to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the negotiate definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement. (b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions ~~that are not materially less favorable to Parent than those~~ contained ~~in the Debt Commitment Letter,~~ therein and (Cii) to satisfy on a timely basis ~~(or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger,~~ all conditions applicable to ~~receipt of the full amount of the Debt Financing at the Closing set forth therein~~ Parent and Opco in such definitive agreements that are within ~~its~~ the control ~~or subject~~ of Parent and Opco. Parent and Opco shall use commercially reasonable efforts to ~~its influence and~~comply with their respective obligations, ~~upon satisfaction~~ and enforce their respective rights, under the Commitment Letter. In the event that any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Commitment Letter, Parent and Opco shall use commercially reasonable efforts to obtain any such portion from alternative sources; provided, however, that in the event that any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Commitment Letter as a result of a failure to satisfy any of the conditions set forth in paragraph (e) of Exhibit B to the ~~Debt~~ Commitment Letter, Parent and Opco shall use best efforts to ~~consummate~~ obtain any such portion from alternative sources. Notwithstanding the ~~Debt Financing at or prior~~ foregoing, Parent and Opco shall be under no obligation to obtain any alternative financing unless it can be obtained on substantially similar economic terms (to Parent, Opco and the ~~Closing, (D~~Equity Investor) ~~to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly~~ as those set forth in the ~~Debt~~ Commitment Letter. Parent shall give the Company prompt notice of any breach by any party to the Commitment Letter ~~have been or, upon funding~~ or any termination of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment ~~Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing~~Letter. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the ~~Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt~~ Financing ~~Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly,~~ and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will shall not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates topermit, without the prior written consent of the Company, ~~take~~ any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to ~~the Debt Commitment Letter relating thereto will~~ be ~~promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence~~made to, or any waiver under, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, ~~to supplement or replace the Debt Financing (“Alternative Debt Financing”). True~~in each case, ~~correct~~ which would materially and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the ~~enforceability, availability or conditionality of, or~~ likelihood that the ~~aggregate amount of proceeds available under, the Debt~~ Financing ~~contained therein redacted),~~ contemplated thereby will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by obtained on a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effecttimely basis. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.

Appears in 2 contracts

Sources: Merger Agreement (Specialty Laboratories Inc), Merger Agreement (Ameripath Inc)

Financing. (a) Subject to the terms and conditions of this Agreement, ~~Parent~~ Buyer shall use its reasonable best efforts to ~~take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and~~ obtain the ~~Debt~~ Financing on the terms and conditions described in the ~~Debt Commitment Letter pursuant~~ Financing Letter, after giving effect to the market flex terms ~~thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter~~ in the ~~event of a breach thereof by the financing provider(s) thereunder. Parent~~ Fee Letter, and shall ~~not, without the Company’s prior written consent,~~ not permit any ~~amendment, supplement, replacement~~ amendment or modification to be made toto (other than to amend the Financing Letter to add lenders, lead arrangers, book runners, syndication agents or similar entities who had not executed the Financing Letter as of the date of this Agreement), or any waiver of any provision or remedy under, the ~~Debt Commitment~~ Financing Letter or the Fee Letter, if such amendment~~, supplement, replacement~~, modification or waiver (Ai) reduces the aggregate amount of the ~~cash proceeds from the Debt~~ Financing or (Bii) imposes new or additional conditions ~~to the initial funding~~ or other terms or otherwise ~~expands~~ expands, amends or modifies any of the conditions to the receipt of the ~~Debt Financing,~~ Financing or ~~otherwise expands, amends or modifies any~~ other ~~provision of the Debt Commitment Letter~~ terms in a manner that would reasonably be expected to (x) delay or prevent the Closing (y) make the timely funding ~~in full~~ of the ~~Debt~~ Financing (or satisfaction of the conditions to obtaining the ~~Debt Financing) on the Closing Date,~~ Financing less likely to occur or (yz) adversely ~~affect~~ impact the ability of ~~Parent~~ Buyer to enforce its rights against the other parties to the ~~Debt Commitment~~ Financing Letter or the definitive agreements with respect ~~thereto (~~thereto; provided that Buyer shall have the right to substitute other financing for all or any portion of the Financing from the same and/or alternative financing sources; provided, further, that ~~Parent may amend~~ such substitution shall only be permitted if (i) the ~~Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action~~ terms thereof would not be reasonably expected to delay or prevent the Closing or make the timely funding of the Financing or satisfaction of the conditions to obtaining the Financing less likely to occur and (ii) the conditions to the Financing set forth in the Financing Letter would not be expanded or modified in a manner that would reasonably be expected to delay or prevent the Closing~~). Parent shall promptly deliver to the Company true~~, ~~complete and correct copies of~~ provided, still further, that any such ~~amendment~~substitute financing shall not obligate any of Seller or its Affiliates as a surety, ~~modification~~ guarantor or ~~replacement~~indemnitor or to extend credit to any Person. Any reference in this Agreement to (A) “Financing,” shall include the financing contemplated by the Financing Letter as amended or modified in compliance with this Section 6.9(a) and (B) “Financing Letter,” and “Fee Letter” shall include such documents as amended or modified in compliance with this Section 6.9(a). (b) ~~Parent shall, and~~ Buyer shall ~~cause its Affiliates and Representatives to,~~ use its reasonable best efforts (Ai) to maintain in effect the ~~Debt Commitment~~ Financing Letter ~~(provided that~~ in accordance with the ~~Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)~~terms and subject to the conditions thereof, (Bii) to negotiate and enter into all definitive agreements with respect to the ~~Debt Commitment Letter (the “Debt~~ Financing ~~Agreements”)~~ on the terms and conditions ~~that are not materially less favorable to Parent than those~~ contained in the ~~Debt Commitment~~ Financing Letter, including the market flex provisions in the Fee Letter, and (Ciii) to satisfy ~~on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger,~~ all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to such definitive agreements and consummate the ~~Debt~~ Financing at or prior to the Closing~~, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time~~. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent Buyer shall keep ~~the Company informed on a current basis and in reasonable detail~~ Seller reasonably apprised of the status of ~~its efforts~~ the Financing and developments with respect thereto (including giving Seller prompt notice of any material change with respect to ~~arrange the Debt~~ such Financing~~, and, promptly following request by the Company,~~ ) and shall provide to ~~the Company~~ Seller copies of all ~~executed Debt Financing Agreements. (c)~~ material definitive documents related to the Financing. Without limiting the generality of the foregoing, ~~Parent~~ Buyer agrees to notify ~~the Company~~ Seller promptly, and in any event within two (2) Business Days, if at any time ~~prior to the Closing Date~~ (ix) the ~~Debt Commitment~~ Financing Letter is shall expire or be terminated for any reason, (iiy) ~~Parent becomes aware~~ any of ~~any breach or default (A) by any Financing Source party~~ the other parties to the ~~Debt Commitment~~ Financing Letter ~~or any Debt Financing Agreement or (B) any other~~ notify Buyer that such party no longer intends to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter provide financing on the terms set forth ~~therein. Parent~~ therein or (z) to Buyer’s knowledge (without a requirement of due inquiry), any of the other parties to the Financing Letter is or is alleged to be in breach or default thereunder. (c) To the extent necessary to complete the transactions contemplated hereby, Buyer shall ~~promptly provide any information reasonably requested~~ use its reasonable best efforts to cause the parties providing Financing to fund on the Closing Date the Financing required to consummate the transactions contemplated hereby and the other transactions contemplated by the ~~Company relating~~ Financing Letter, including by taking enforcement action, if all conditions in the Financing Letter and all conditions to ~~any circumstances referred to~~ Closing contained in this ~~Section 6.13(c). Parent shall not~~Agreement are satisfied or waived, ~~nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action~~ or ~~enter into any transaction that would reasonably~~ upon funding will be ~~expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing~~satisfied. (d) ~~Parent~~ If the Financing Letter shall ~~have~~ be terminated or modified in a manner materially adverse to Buyer, if the ~~right to substitute~~ Financing Letter shall be materially breached or repudiated by the ~~net cash proceeds received by Parent after the date hereof and prior~~ other parties to the ~~Closing from consummated offerings~~ Financing Letter, or ~~other incurrences of debt (including notes) by Parent for all or~~ if any portion of the ~~Debt~~ Financing ~~by reducing commitments under~~ becomes unavailable on the ~~Debt Commitment~~ terms and conditions contemplated in the Financing Letter (other than as a result of obtaining substitute debt financing in accordance with Section 6.9(a)) (such event, an “Original Financing Failure”), Buyer shall use its reasonable best efforts to arrange promptly to obtain alternative financing from alternative sources on terms and conditions not less favorable to Buyer than those contained in the Financing Letter and the Fee Letter and in an amount at least equal to the Financing or such unavailable portion thereof, as the case may be (the “Alternate Financing”), and to obtain a new financing commitment letter with respect to such Alternate Financing (the “New Financing Letter; ”), which shall replace the existing Financing Letter, provided that any such Alternate Financing shall not obligate any of Seller or its Affiliates as a surety, guarantor or indemnitor or to extend credit to any Person (~~v) such offering~~ the terms described in this proviso “Prohibited Alternate Terms”). Buyer shall not execute a New Financing Letter or ~~other incurrence~~ consummate any Alternate Financing, without the written consent of ~~debt does not result in a breach or default under~~Seller, ~~or violation of, the Debt Commitment Letter,~~ if (wi) the ~~aggregate amount~~ terms of the ~~Debt~~ New Financing ~~committed under the Debt Commitment~~ Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Alternate Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in ~~respect of certainty of funding~~the aggregate, ~~equivalent to (or more~~ less favorable to the ~~Company than~~Seller than the Financing Letter or the Financing (without giving effect to the Original Financing Failure), (ii) the terms thereof would be reasonably expected to delay or prevent the Closing or make the timely funding of the Alternate Financing or satisfaction of the conditions to obtaining the Alternate Financing less likely to occur, as compared to the Financing Letter and the Financing (without giving effect to the Original Financing Failure) or (iii) the conditions ~~precedent~~ to the Alternate Financing set forth in the ~~Debt Commitment Letter, to supplement~~ New Financing Letter would be expanded or ~~replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment~~ modified in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.a

Appears in 2 contracts

Sources: Purchase and Sale Agreement, Purchase and Sale Agreement (Southern Union Co)

Financing. (a) Subject to the terms and conditions of this Agreement, ~~Parent~~ Merger Sub shall use its reasonable best efforts to ~~take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and~~ obtain the ~~Debt~~ Financing on the terms and conditions described in the ~~Debt Commitment Letter pursuant~~ Financing Letters, after giving effect to the market flex terms ~~thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter~~ in the ~~event of a breach thereof by the financing provider(s) thereunder. Parent~~ Fee Letter, and shall ~~not, without the Company’s prior written consent,~~ not permit any ~~amendment, supplement, replacement~~ amendment or modification to be made to, or any waiver of any provision or remedy under, the ~~Debt Commitment Letter~~ Financing Letters or the Fee Letter, if such amendment~~, supplement, replacement~~, modification or waiver (Ai) reduces the aggregate amount of the ~~cash proceeds from~~ Financing (including by changing the ~~Debt Financing~~ amount of fees to be paid or original issue discount) or (Bii) imposes new or additional conditions ~~to the initial funding~~ or other terms or otherwise ~~expands~~ expands, amends or modifies any of the conditions to the receipt of the ~~Debt Financing,~~ Financing or ~~otherwise expands, amends or modifies any~~ other ~~provision of the Debt Commitment Letter~~ terms in a manner that ~~would~~ could reasonably be expected to (x) delay or prevent the Closing (y) make the timely funding ~~in full~~ of the ~~Debt~~ Financing (or satisfaction of the conditions to obtaining the ~~Debt Financing) on the Closing Date,~~ Financing less likely to occur or (yz) adversely ~~affect~~ impact the ability of Parent and Merger Sub to enforce ~~its~~ their rights against the other parties to the ~~Debt Commitment Letter~~ Financing Letters or the definitive agreements with respect ~~thereto (provided,~~ thereto; provided that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement. (b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Merger Sub shall ~~use their reasonable best efforts~~ have the right to ~~enforce their rights under, and cause the Financing Sources, lenders and the~~ substitute other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. debt (cbut not equity financing) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on from the same and/or alternative financing sources; provided, further, that such substitution shall only be permitted if (i) the terms would not be reasonably expected to delay or prevent the Closing or make the timely funding of the Debt Financing or satisfaction of the conditions to obtaining the Debt Financing less likely to occur, (ii) the conditions to the Debt Financing set forth ~~therein. Parent shall promptly provide any information reasonably requested by~~ in the ~~Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent~~ Debt Commitment Letter as of the ~~Company, take any action~~ date hereof would not be expanded or ~~enter into any transaction~~ modified in a manner that would reasonably be expected to ~~materially impair,~~ delay or prevent ~~consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to~~ the Closing ~~from consummated offerings or other incurrences of debt~~ and (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (wiii) the ~~aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash~~ terms and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions ~~precedent to funding of such financing are~~are not, in ~~respect of certainty of funding~~the aggregate, ~~equivalent to (or more~~ less favorable to the Company ~~than) the conditions precedent set forth~~ than those in the Debt Commitment Letter, after giving effect to ~~supplement or replace~~ the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely market flex terms in the ~~case~~ Fee Letters and provided, further, that any such substitute financing shall not obligate any of Stockholder or its Affiliates (other than the ~~fee letter~~Companies) as a surety, ~~with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability~~ guarantor or ~~conditionality of,~~ indemnitor or ~~the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided~~ to ~~the Company~~extend credit to any Person. ~~In the event any New Debt Commitment Letter is obtained, (i) any~~ Any reference in this Agreement to ~~the~~ (A) “Financing,” “Equity Financing” and “Debt Financing” shall include the ~~debt~~ financing contemplated by the ~~Debt~~ Financing Letters as amended or modified in compliance with this Section 5.11 and (B) “Financing Letters,” “Equity Commitment ~~Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the~~ Letter,” “Debt Commitment Letter” ~~shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question~~ and ~~each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to~~ “~~fee letter~~Fee Letter” shall ~~be deemed to~~ include ~~any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time~~ such documents as amended or modified in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with this Section ~~6.14(a)(iii)~~5.11. (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.

Appears in 2 contracts

Sources: Merger Agreement (EVERTEC, Inc.), Merger Agreement (Popular Inc)

Financing. (a) Subject to the terms and conditions of this Agreement, Parent ~~shall~~ will use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable ~~or proper~~ to ~~arrange~~ arrange, timely obtain, maintain and ~~obtain~~ enforce its rights in respect of the ~~Debt~~ Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall notLetters, ~~without the Company’s prior written consent,~~ and will not permit any ~~amendment, supplement, replacement~~ amendment and the requirements set forth above or modification to be made to, or any waiver of any provision or remedy under, the Debt Commitment ~~Letter~~ Letters if such amendment, supplement, ~~replacement,~~ modification or waiver would (Ai) ~~reduces~~ reduce the aggregate amount of the ~~cash proceeds from the Debt Financing~~ Financing, or (Bii) ~~imposes~~ impose new or additional ~~conditions to the initial funding~~ conditions, or otherwise ~~expands~~ amend, modify or expand any ~~of the conditions~~ conditions, to the receipt of the ~~Debt~~ Financing, in the case of either clause (i) or ~~otherwise expands~~(ii) above, ~~amends or modifies any other provision of the Debt Commitment Letter~~ in a manner that would reasonably be expected to (xA) delay (other than a de-minimus delay), impede (other than a de-minimus impediment) or prevent the Closing Date, (B) make the funding ~~in full~~ of the ~~Debt~~ Financing (or satisfaction of the conditions to obtaining the Financing) less likely to occur or (C) adversely impact the ability of Parent or Merger Sub to enforce its rights against the other parties to the Debt ~~Financing~~Commitment Letters or the definitive agreements with respect thereto, the ability of Parent or Merger Sub to consummate the Transactions or the likelihood of consummation of the Transactions; provided, however, that Parent and Merger Sub may (i) amend the Debt Commitment Letters to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Commitment Letters as of the date of this Agreement or (ii) otherwise amend or replace the Debt Commitment Letters so long as (v) such amendment or replacement do not impose terms or conditions that would reasonably be expected to delay, impede or prevent the Closing, (w) the terms are not, taken as a whole, less beneficial to Parent or Merger Sub, than those in the Debt Commitment Letters as in effect on the ~~Closing Date,~~ date of this Agreement or impose incremental conditions (yor expand existing conditions) to funding thereunder as compared to the Debt Commitment Letters in effect as of the date hereof (x) adversely ~~affect~~ affects the ability of Parent to enforce its rights against other parties to the ~~Debt~~ Commitment Letter or the ~~definitive~~ Financing agreements ~~with respect thereto (provided~~as so amended, ~~that~~ replaced, supplemented or otherwise modified, relative to the ability of Parent ~~may amend~~ to enforce its rights against such other parties to the Debt Commitment Letters and Fee Letter as in effect on the date hereof or in the definitive debt agreements, (y) reduce the aggregate amount of the Debt Financing and (z) with respect to ~~add~~ replacements, the replacement debt commitments otherwise satisfy the terms and conditions of an Alternative Financing set forth below. In the event of such amendment or ~~replace lenders~~replacement of the Debt Commitment Letters as permitted by the proviso to the immediately preceding sentence, ~~lead arrangers, bookrunners, syndication agents~~ the financing under such amended or ~~similar entities so long~~ replaced Debt Commitment Letters will be deemed to be “Financing” as such ~~action would not reasonably be expected to delay or prevent the Closing)~~term is used in this Agreement. Parent ~~shall promptly deliver to~~ will keep the Company ~~true, complete and correct copies~~ reasonably informed of any such amendment, ~~modification~~ modification, supplement or replacement~~. (b)~~ , including promptly providing copies of all such drafts and related final documentation. Parent ~~shall, and shall cause its Affiliates and Representatives to,~~ will use its reasonable best efforts to (AI) to maintain in effect the Debt Commitment ~~Letter~~ Letters (~~provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided~~ including any definitive agreements entered into in ~~this Section 6.13~~connection therewith), (BII) satisfy on a timely basis (taking into account the Marketing Period) all conditions in the Financing Agreements applicable to Parent and Merger Sub to obtaining the Financing as promptly as practicable, (III) negotiate and enter into definitive agreements with respect to the Debt Commitment ~~Letter (the “Debt Financing Agreements”)~~ Letters on ~~the~~ terms and conditions ~~that are not materially less favorable to Parent than those~~ contained in the Debt Commitment ~~Letter, (C) to satisfy on a timely basis (~~Letters or ~~obtain the waiver of), and~~ consistent in ~~a manner that will not impede the ability of the parties to consummate the Merger,~~ all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in material respects with the Debt Commitment ~~Letter~~Letters as promptly as practicable (such definitive agreements, together with the Debt Commitment Letters, the “Financing Agreements”) and promptly upon execution thereof provide complete executed copies of such definitive agreements to the Company, (IV) consummate the ~~Debt~~ Financing at or prior to the ~~Closing~~Closing and (V) fully enforce the counterparties’ obligations and its rights under the Financing Agreements, including by suit or other appropriate proceeding to cause the lenders under the Financing to fund in accordance with their respective commitments if all conditions to funding the Financing in the applicable Financing Agreements have been satisfied or waived. Parent will keep the Company reasonably informed on a timely basis of the status of Parent’s and Merger Sub’s efforts to arrange the Financing and to satisfy the conditions thereof, including, upon Company’s reasonable request, (DA) advising and updating the Company, in a reasonable level of detail, with respect to status, proposed Closing Date and terms of the Financing Agreements for the Financing and (B) providing copies of the current drafts of all such Financing Agreements. If any portion of that amount of the Financing becomes reasonably likely to be unavailable on the terms and conditions contemplated by the applicable Financing Agreements, (i) Parent will promptly notify the Company and (ii) Parent will use its reasonable best efforts to arrange and obtain alternative financing from alternative sources in an amount sufficient to consummate the Transactions with terms and conditions not less favorable, taken as a whole, to Parent, Merger Sub and the Company than the terms and conditions set forth in the applicable Financing Agreements (“Alternative Financing”) as promptly as practicable following the occurrence of such event but no later than the final day of the Marketing Period. In such event, (1) the term “Financing” will be deemed to include the Alternative Financing, (2) the term “Debt Commitment Letters” will be deemed to include any commitment letters, engagement letters and fee letters with respect to any such alternative debt financing and (3) the term “Financing Agreements” will be deemed to include any definitive agreement with respect to the Alternative Financing. Notwithstanding anything contained in this Section 5.13 or in any other provision of this Agreement, in no event will Parent or Merger Sub be required (i) to ~~comply with its obligations under~~ amend or waive any of the ~~Debt Commitment Letter, and~~ terms or conditions hereof or (Eii) to consummate the Closing any earlier than the final day of the Marketing Period. For the avoidance of doubt, Parent will, directly or indirectly, make all proceeds of the Debt Financing received by Parent available to Merger Sub as are required for Merger Sub to perform its obligations hereunder. (b) The Company will provide to Parent, and will cause its Subsidiaries to provide, at Parent’s cost and expense as provided in Section 5.13(c), and will use reasonable best efforts to cause its Representatives to provide, all cooperation reasonably requested by Parent that is customary and necessary in connection with arranging, obtaining and syndicating the Financing and causing the conditions in the Financing Agreements to be satisfied, including using reasonable best efforts in (i) assisting with the preparation of offering and syndication documents and materials, including prospectuses, private placement memoranda, information memoranda, lender and investor presentations, rating agency materials and presentations, and similar documents and materials, in connection with the Financing (all such documents and materials, collectively, the “Offering Documents”), (ii) preparing and furnishing to Parent and the Financing Sources promptly with all Required Information to the extent it is available to the Company and all other information and disclosures relating to the Company and its Subsidiaries (including their businesses, operations, financial projections and prospects) as may be reasonably requested by Parent to assist in preparation of the Offering Documents, (iii) having the Company designate a member of senior management of the Company to participate in a reasonable number of presentations, road shows, due diligence sessions, drafting sessions and sessions with ratings agencies in connection with the Financing, including direct contact between such senior management of the Company and its Subsidiaries and Parent’s Financing Sources and potential lenders in the Financing, (iv) assisting Parent in obtaining any corporate credit and family ratings from any ratings agencies contemplated by the Debt Commitment Letters, (v) requesting the Company’s independent auditors to cooperate with Parent’s reasonable best efforts to obtain accountant’s comfort letters and consents from the Company’s independent auditors, if applicable, (vi) assisting in the preparation of, and executing and delivering, definitive financing documents, including guarantee documents, hedging agreements and other certificates and documents as may be reasonably requested by Parent, (vii) obtaining from the Company’s existing lenders such consents, approvals, authorizations and instruments which may be reasonably requested by Parent in connection with the Financing, (viii) obtaining from the Company’s existing banking lenders customary payoff letters, lien releases, instruments of termination or discharge and (ix) cooperating with Parent to satisfy the conditions precedent to the Financing to the extent within the control of the Company and its Subsidiaries, and taking all corporate actions, subject to the occurrence of the Effective Time, reasonably requested by Parent to permit the consummation of the Financing and to permit the proceeds thereof to be made available to the Surviving Corporation immediately upon the Effective Time; provided, however, that no obligation of the Company or any Company Subsidiary under any certificate, document, agreement or instrument (other than the representation letters referred to above) will be effective until the Effective Time and, none of the Company or any Company Subsidiary will be required to pay any commitment or other similar fee or incur any other liability (other than in connection with the authorization and representation letters referred to above) in connection with the Financing prior to the Effective Time. In connection with the ~~event that~~ foregoing, the Company will file with the SEC all ~~conditions precedent expressly set forth~~ Company Reports for the annual and quarterly fiscal periods ending on and after September 30, 2014 not later than (i) 90 days following the end of the Company’s fiscal year, in the ~~Debt Commitment Letter have been or~~case of annual reports on Form 10-K and (ii) 45 days following the end of each fiscal quarter of the Company, in the case of quarterly reports on Form 10-Q, all of which such Company Reports will be Compliant. The Company hereby consents to the use of the Company Subsidiaries’ logos in connection with the Financing in a form and manner agreed with the Company; provided, however, that such logos are used solely in a manner that is not intended, or reasonably likely, to harm or disparage the Company or any Company Subsidiary or the reputation or goodwill of the Company or any Company Subsidiary. The Company will, upon ~~funding~~ reasonable request of ~~the Debt Financing will be~~Parent, ~~satisfied, Parent and Sub shall~~ use ~~their~~ its reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, upon obtaining knowledge thereof promptly ~~following request by the Company, provide~~ update any Required Information (to the ~~Company copies~~ extent it is available) to be included in any Offering Document to be used in connection with such Financing so that Parent may ensure that any such Required Information does not contain any untrue statement of ~~all executed Debt Financing Agreements~~material fact or omit to state any material fact necessary in order to make the statements contained therein not materially misleading. (c) ~~Without limiting~~ Notwithstanding the ~~foregoing~~requirements of Section 5.13(b), ~~Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date~~ (i) solely Parent will be responsible for provision of any post-Closing pro forma financial information, including cost savings, synergies, capitalization, ownership or other pro forma adjustments (provided, that for the ~~Debt Commitment Letter is terminated~~ avoidance of doubt, the Company will provide Parent with customary reasonably available financial and other information relating to the Company and its Subsidiaries reasonably requested by Parent to allow Parent to prepare such pro forma financial information) and any financial projections of the Company for ~~any reason~~and after the Effective Time, (ii) ~~Parent becomes aware~~ neither the Company nor any Company Subsidiary or their respective Representatives will be required to enter into any certificate, document, agreement or instrument which will be effective prior to the Effective Time, (iii) nothing herein will require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any Company Subsidiary, (iv) none of the Company or any Company Subsidiary will be required to pay any commitment or other similar fee or incur any other liability in connection with the Financing prior to the Effective Time, (v) nothing herein will require cooperation or assistance from a Company director, officer or employee to the extent such Company director, officer or employee is reasonably likely to incur any personal financial liability by providing such cooperation or assistance that will not be repaid or reimbursed in full by Parent, (vi) delivery of any ~~breach~~ financial information in a form not customarily prepared by the Company or ~~default~~ any financial information with respect to a fiscal period that has not yet ended, or has ended less than forty-five (A45) ~~by any Financing Source party~~ days prior to the ~~Debt Commitment Letter~~ date of such request (or ~~any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if,~~ in the case of ~~this clause~~ annual financials, ninety (B)90) days) or delivery of projections, ~~such breach~~ (vii) delivery of any legal opinions or ~~default would reasonably be expected~~ any certificate as to ~~affect the availability of the Debt Financing~~ solvency, or (~~iii~~viii) ~~a counterparty indicates in writing~~ the taking of any action that would conflict with or ~~orally that it will not provide~~violate (x) the Company Charter or Company Bylaws, or ~~it refuses to provide~~result in the contravention of, ~~all~~ or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to ~~materially impair~~result in a violation or breach of, ~~delay~~ or ~~prevent consummation of all~~ default under, any written agreement, contract, subcontract, lease, license understanding, instrument, note, bond, mortgage, indenture, option, warranty, insurance policy, benefit plan or other legally binding commitment to which the Company or any ~~portion~~ of its Subsidiaries is a party, in each case that are not contingent upon the ~~Debt Financing~~Effective Time or (y) any applicable Laws. (d) Parent ~~shall have~~ will promptly, upon request by the ~~right to substitute~~ Company, reimburse the ~~net cash proceeds received by Parent after the date hereof~~ Company for all reasonable out-of-pocket costs and ~~prior to the Closing from consummated offerings or other incurrences of debt~~ expenses (including ~~notes~~reasonable attorneys’ fees) incurred by ~~Parent for all~~ the Company or any ~~portion~~ of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid its Subsidiaries in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations cooperation of the Company and its Subsidiaries ~~pursuant to~~ contemplated by Section ~~6.14 shall no longer be in effect~~5.13(b). ~~Further~~Parent will indemnify and hold harmless the Company, ~~Parent shall have the right to substitute commitments in respect~~ its Subsidiaries and their respective Representatives from and against any and all losses, damages, claims, costs or expenses suffered or incurred by any of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid them in connection with the ~~transactions contemplated by this Agreement and all conditions precedent to funding~~ arrangement of ~~such financing are, in respect of certainty of funding, equivalent to (or more favorable to~~ the ~~Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt~~ Financing (~~“Alternative Debt Financing”~~including any action taken in accordance with this Section 5.13(d)~~. True, correct~~ ) and ~~complete copies of each alternative financing commitment~~ any information used in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectconnection therewith. (e) On Parent and Merger Sub acknowledge and agree that the obtaining of Financing, or any Alternative Financing, is not a condition to Closing ~~Date, Parent shall provide all funds required~~ and reaffirm their obligation to ~~effect~~ consummate the ~~repayment~~ Transactions irrespective and independently of ~~all indebtedness under~~ the ~~Company Credit Agreement in full in accordance with~~ availability of the ~~Company Credit Agreement~~Financing or any Alternative Financing, subject to ~~compliance with Section 6.14(a)(iii)~~fulfillment or waiver of the conditions set forth in Article VI. (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.

Appears in 2 contracts

Sources: Merger Agreement (Eastman Chemical Co), Agreement and Plan of Merger (TAMINCO Corp)

Financing. (a) ~~Subject~~ Moon shall not, without the prior written consent of Comet: (i) permit any amendment or modification to, or any waiver of any provision or remedy under, the Financing Commitments if such amendment, modification, waiver or remedy (A) adds any new (or modifies adversely to Moon or Comet any existing) conditions to the ~~terms~~ consummation of all or any portion of the Financings, (B) reduces the aggregate amount of the Financings such that the aggregate funds that would be available to Moon on the Closing Date would not be sufficient to pay all amounts contemplated by this Agreement to be paid by it (including to refinance the Existing Debt) and ~~conditions~~ to perform its obligations hereunder, (C) limits or otherwise adversely affects the ability of Moon to enforce its rights against the other parties to the Financing Commitments or the Definitive Agreements or (D) would otherwise reasonably be expected to prevent, impede or delay the consummation of the Combination and the other transactions contemplated by this Agreement; or (ii) take any action to terminate the Financing Commitments. Moon shall promptly deliver to Comet copies of any amendment, modification or waiver to the Financing Commitments. Notwithstanding anything in this Agreement to the contrary, subject to the limitations set forth in this Section 7.20(a), Moon may amend, replace, supplement or otherwise modify the Financing Commitment Letters to add or replace Lenders, lead arrangers, agents or similar entities and the commitments in respect of the Financings that have not executed the Financing Commitment Letter as of the date of this ~~Agreement, Parent~~ Agreement and replace the debt commitments of the Lenders under the Financing Commitment Letter as of the date of this Agreement with debt commitments of such new entities. (b) Moon shall use its reasonable best efforts to take, or cause to be taken, all actions ~~and~~ necessary to ~~do, or cause to be done, all things necessary, advisable or proper to arrange and~~ obtain the ~~Debt Financing~~ proceeds of the Financings on the terms and conditions described in the ~~Debt Commitment Letter pursuant~~ Financing Commitments or terms more favorable to ~~the terms thereof (~~Moon, including ~~any “market flex” provisions) including~~ by using its reasonable best efforts to ~~seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s~~(i) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement. (b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the ~~Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)~~Financing Commitments, (Bii) ~~to negotiate~~ negotiate, execute and ~~enter into~~ deliver definitive agreements with respect to the ~~Debt Commitment Letter~~ Financings (the “~~Debt Financing~~ Definitive Agreements”) on the terms and conditions ~~that are not materially less favorable to Parent than those~~ contained in the ~~Debt Commitment Letter,~~ Financing Commitments and (Ciii) to satisfy on a timely basis ~~(or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger,~~ all conditions ~~to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth~~ in the ~~Debt Commitment Letter, to consummate~~ Financing Commitments and the ~~Debt Financing at or prior to the Closing, (D) to~~ Definitive Agreements and comply with its obligations ~~under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time~~thereunder. In the event that all conditions ~~precedent expressly set forth~~ contained in the ~~Debt Commitment Letter~~ Financing Commitments or the Definitive Agreements have been ~~or, upon funding of the Debt Financing will be,~~ satisfied, ~~Parent and Sub~~ Moon shall use ~~their~~ reasonable best efforts to enforce ~~their~~ its rights ~~under,~~ thereunder and cause the ~~Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing~~ Lenders thereunder to comply with their respective obligations ~~under~~ thereunder to fund the ~~Debt Commitment Letter and definitive financing agreements~~ Financings to the extent required to consummate the transactions contemplated by this Agreement and to ~~fund~~ pay related fees and expenses on ~~or before~~ the ~~Effective Time the Debt Financing. Parent~~ Closing Date. (c) Moon shall keep ~~the Company~~ Comet informed on a reasonably current basis and in reasonable detail of the status of its efforts to arrange the ~~Debt Financing, and, promptly following request by~~ Financings. In the ~~Company, provide to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any~~ event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that ~~it will not provide, or it refuses to provide, all or~~ any portion of the ~~Debt Financing contemplated by~~ Financings becomes unavailable (other than due to the ~~Debt Commitment Letter on~~ failure of any of the ~~terms~~ conditions set forth ~~therein. Parent shall promptly provide any information reasonably requested by~~ in Section 8.1 or Section 8.2 hereof), Moon will use reasonable best efforts to obtain alternative debt financing (in an amount sufficient, when taken together with the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any available portion of the ~~Debt Financing. (d) Parent shall have the right~~ Financings, to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with consummate the transactions contemplated by this Agreement and ~~all~~ to pay related fees and expenses) from the same or other sources and which do not include any conditions ~~precedent~~ to ~~funding~~ the consummation of such alternative debt financing ~~are, in respect of certainty of funding, equivalent to (or~~ that are more ~~favorable to the Company than)~~ onerous than the conditions ~~precedent~~ set forth in the ~~Debt~~ Financing Commitment Letter~~, to supplement or replace~~ . For the ~~Debt Financing (“Alternative Debt Financing”). True, correct and complete copies~~ purposes of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available underthis Agreement, the ~~Debt~~ term “Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include ~~the Debt~~ any commitment letter (or similar agreement) with respect to any alternative financing arranged in compliance herewith (and any Financing Commitment Letter ~~which is not superseded by a New Debt Commitment Letter~~ remaining in effect at the time in ~~question~~ question). Moon shall provide Comet with prompt oral and ~~each New Debt Commitment Letter~~ written notice of any breach or default by any party to the ~~extent then in effect~~Financing Commitments or any Definitive Agreement and the receipt of any written notice or other written communication from any Lender or other financing source with respect to any breach, ~~and (iii)~~ default, termination or repudiation by any ~~reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating~~ party to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s Financing Commitments or any Definitive Agreement of ~~its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement~~any provision thereof.

Appears in 2 contracts

Sources: Business Combination Agreement (Chicago Bridge & Iron Co N V), Business Combination Agreement (McDermott International Inc)

Financing. (a) (i) Subject to the terms and conditions of this Agreement, ~~Parent~~ Vertical/Trigen shall, and shall cause its subsidiaries to, use ~~its~~ their respective reasonable best efforts to ~~take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and~~ obtain the ~~Debt~~ Financing on the terms and conditions ~~described in the Debt Commitment Letter pursuant to the terms thereof~~ (including ~~any~~ the “market flex” provisions~~) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter~~ ), contained in the ~~event of a breach thereof by~~ Commitment Letters as promptly as practicable taking into account the ~~financing provider(s~~anticipated Closing Date (after giving effect to and contemplating the Marketing Period) ~~thereunder. Parent~~ and shall ~~not, without the Company’s prior written consent,~~ not permit any ~~amendment, supplement, replacement~~ amendment or modification to be made to, or any waiver of any provision under, the ~~Debt~~ Commitment ~~Letter if~~ Letters, in each case, without the prior written consent of the Osmotica Shareholders’ Representative (such ~~amendment~~consent not to be unreasonably withheld, ~~supplement~~conditioned or delayed); provided, ~~replacement~~that, ~~modification or waiver~~ without the consent of the Osmotica Shareholders’ Representative, Vertical/Trigen may (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the ~~Debt~~ Commitment ~~Letter~~ Letters to add ~~or replace~~ lenders, lead arrangers, bookrunners, syndication ~~agents~~ agents, additional purchasers or similar entities who had not executed the Commitment Letters as of the date hereof, or (B) otherwise modify or amend, or agree to any waivers in respect of, either Commitment Letter so long as as, in each case, (1) such action would not reasonably be expected to (x) reduce the aggregate amount of the Financing (including by increasing the amount of fees to be paid or original issue discount) in a manner that would cause the representation set forth in Section 4.08(c) to be untrue or inaccurate, (y) delay or prevent the Closing), or (z) impair the availability of the Financing on the Closing Date, and (2) the terms of such amendment, modification or waiver are not less beneficial to Vertical/Trigen, with respect to conditionality or enforcement, than those in the Commitment Letters as in effect on the date of this Agreement. ~~Parent~~ Vertical/Trigen shall promptly deliver to ~~the Company true, complete and correct~~ Osmotica copies of any such amendment, modification or ~~replacement. (b) Parent shall~~waiver, and shall ~~cause its Affiliates and Representatives to~~promptly consult with Osmotica in connection with any proposed amendment, ~~use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified~~ modification or ~~waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect~~ waiver pursuant to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this preceding clause (B)~~, such breach or default would reasonably be expected to affect the availability~~ . For purposes of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section ~~6.13(c). Parent shall not~~5.12 and Sections 4.16 and 4.21, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement references to the “~~Debt~~ Financing” shall include the ~~debt~~ financing contemplated by the ~~Debt~~ Commitment ~~Letter~~ Letters as permitted to be amended or modified ~~pursuant to clause (ii) below~~by this Section 5.12(a), ~~(ii) any reference in this Agreement~~ and references to the “~~Debt~~ Commitment ~~Letter~~Letters” shall include such documents as permitted to be ~~deemed to include the Debt Commitment Letter which is not superseded~~ amended or modified by ~~a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in~~ this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section ~~6.14(a)(iii~~5.12(a). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.

Appears in 2 contracts

Sources: Business Combination Agreement (Osmotica Pharmaceuticals PLC), Business Combination Agreement (Osmotica Pharmaceuticals LTD)

Financing. (a) Subject to the ~~terms~~ limitations contained in Section 9.4, but notwithstanding anything else in this Agreement to the contrary, the Datatel Entities acknowledge and agree that Parent’s and Merger Sub’s obligations to consummate the Merger, and Purchaser Company’s obligation to consummate the transactions contemplated by the Asset Purchase Agreement, are not conditioned upon any Datatel Entity’s obtaining any financing. For the avoidance of doubt, the Datatel Entities acknowledge and agree that the existence of any conditions contained in the Financing Commitments or any commitment letter for any alternative financing or any agreement relating thereto shall not constitute, nor be construed to constitute, a condition to the consummation of the Merger hereunder (except to the extent it is separately required by an express provision in this Agreement). (b) None of the Datatel Entities shall permit any amendment or modification to be made to, ~~Parent~~ or any waiver of any provision or remedy under, or replace, the Financing Commitments if such amendment, modification, waiver or replacement (x) reduces the aggregate amount of the Financing or (y) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of the Financing in a manner that would reasonably be expected to (I) delay or prevent the Asset Closing Date or the Closing Date, (II) make the funding of the Financing (or satisfaction of the conditions to obtaining the Financing) less likely to occur or (III) adversely impact the ability of Sophia Holding I or Datatel, as applicable, to enforce its rights against other parties to the Financing Commitments or the definitive agreements with respect thereto, and shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable ~~or proper~~ to arrange ~~and obtain~~ the ~~Debt~~ Financing on the terms and conditions described in the ~~Debt Commitment Letter pursuant to~~ Financing Commitments (provided that Parent may (x) modify the terms ~~thereof~~ (~~including any “market flex” provisions~~but not the conditions) ~~including using its reasonable best efforts to seek to enforce its rights under~~ of the Debt ~~Commitment Letter in the event of a breach thereof by the financing provider(s~~Financing Commitments so long as such modifications would not and would not reasonably be expected to (I) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces reduce the aggregate amount of the ~~cash proceeds from the~~ Debt Financing or unless the Transaction Equity Financing to be provided by the Investors is increased by a corresponding amount on substantially the same terms as provided in the Transaction Equity Financing Commitments, (BII) ~~imposes new or additional conditions to~~ adversely impact the ~~initial funding or otherwise expands any~~ ability of the ~~conditions~~ applicable Datatel Entity to timely consummate the ~~receipt~~ Merger or the Asset Purchase or the likelihood of consummation of the ~~Debt Financing,~~ Merger or ~~otherwise expands, amends or modifies any other provision of~~ the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing DateAsset Purchase, or (yIII) adversely ~~affect~~ impact the ability of Parent to enforce its rights against the other parties to the ~~Debt Commitment Letter or the definitive agreements with respect thereto~~ Financing Commitments and (~~provided, that Parent may~~ y) amend the Debt Financing Commitment ~~Letter~~ to add ~~or replace~~ lenders, lead arrangers, bookrunners, syndication agents or similar entities ~~so long~~ who had not executed the Debt Financing Commitment as of the date hereof; provided that, except as contemplated by the Debt Financing Commitment as in effect on the date hereof and with the prior written consent of SunGard Data (not to be unreasonably withheld or delayed), the obligations of the Financing Sources providing the Debt Financing Commitment on the date hereof will not be modified or reduced as a result of such ~~action~~ addition), including using their reasonable best efforts to (i) maintain in effect the Financing Commitments, (ii) satisfy on a timely basis (taking into account the expected timing of the Marketing Period and the Applicable Closing) all conditions applicable to the applicable Datatel Entity to obtaining the Financing at the Applicable Closing set forth therein that are within its control, (iii) enter into definitive agreements with respect thereto on the terms and conditions contemplated by the Debt Financing Commitment or on other terms and conditions acceptable to Parent that would not ~~reasonably~~ adversely impact the timing or amount of the Debt Financing (and provide copies thereof to SunGard Data) and (iv) in the event that all conditions to the Debt Financing Commitment (other than the availability or funding of any of the Transaction Equity Financing) have been satisfied, cause the lenders and the other Persons providing such Debt Financing to fund the Debt Financing required to consummate the Merger and the Asset Purchase. For the avoidance of doubt, in the event that (x) all or any portion of the Debt Financing structured as high yield financing has not been consummated, (y) all of the conditions set forth in Section 8.1 and Section 8.3 and, unless the Asset Purchase Agreement has been terminated pursuant to Section 9.1(b) thereof, all of the conditions set forth in Section 8.1 and 8.3 of the Asset Purchase Agreement have been satisfied or waived (other than those conditions that by their nature are to be ~~expected~~ satisfied at the Applicable Closing, but subject to ~~delay~~ the fulfillment or ~~prevent~~ waiver of those conditions and such conditions being capable of being satisfied) and (z) the ~~Closing~~bridge facilities contemplated by the Debt Financing Commitment (including any flex terms) are available on the terms and conditions described in the Debt Financing Commitment, then Parent shall cause the proceeds of such bridge financing to be used to replace such high yield financing on the date that the Applicable Closing is required to occur pursuant to Section 2.3 or Section 3.2 of the Asset Purchase Agreement, as applicable. (c) The Datatel Entities shall as promptly as practicable notify SunGard Data of (i) any termination of any of the Financing Commitments, (ii) the receipt of any written notice or other written communication from any Financing Source with respect to any actual or alleged breach, default, termination or repudiation by any party to any of the Financing Commitments or definitive agreements related to the Financing of any provision of the Financing Commitments or definitive agreements related to the Financing or (iii) receipt of an Escrow Demand Notice (as defined in the Fee Letter). In the event Parent believes in good faith that any portion of the Debt Financing will not be available within the timing contemplated in the Debt Financing Commitment, Parent shall as promptly as practicable notify SunGard Data and shall use its reasonable best efforts to arrange to obtain alternative financing from alternative sources on terms and conditions no less favorable to Parent than those set forth in the Debt Financing Commitment as in effect prior to such alternative financing and in an amount sufficient to consummate the Transactions as promptly as practicable following the occurrence of such event. Parent shall promptly deliver to ~~the Company true,~~ SunGard Data true and complete ~~and correct~~ copies of all agreements pursuant to which any such alternative source shall have committed to provide Parent with any portion of the Debt Financing. Parent shall use its reasonable best efforts to cause the Financing Sources providing Debt Financing to fund at the Applicable Closing the Debt Financing required to consummate the Transactions contemplated if all conditions set forth in the Debt Financing Commitment have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Applicable Closing, but subject to the fulfillment or waiver of those conditions and such conditions being capable of being satisfied). For purposes of this Agreement, references to “Financing” and “Debt Financing” shall include the financing contemplated by the Financing Commitments as permitted by this Section 7.15 to be amended, modified or replaced and references to “Financing Commitments” and “Debt Financing Commitments” shall include such documents as permitted by this Section 7.15 to be amended, modified or replaced, in each case from and after such amendment, modification or replacement. (bd) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior Prior to the Closing, ~~(D)~~ the SunGard Entities, the Company and their respective Subsidiaries shall provide to ~~comply with~~ Parent and its ~~obligations under the Debt Commitment Letter~~Affiliates, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to ~~enforce their rights under, and~~ cause the officers, employees, advisors and other Representatives of the SunGard Entities, the Company and their respective Subsidiaries to provide to Parent and its Affiliates, all cooperation that is reasonably requested by Parent in connection with the Financing, including: (i) participating in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with the Debt Financing Sources, ~~lenders~~ prospective lenders, investors and ratings agencies, and reasonably cooperating with the marketing efforts of Parent and its Financing Sources, in each case in connection with the Financing; (ii) (A) using reasonable best efforts to furnish Parent and its Debt Financing Sources as promptly as practicable after the date of this Agreement with all financial and other pertinent information regarding the Company and its Subsidiaries as may be reasonably requested by Parent to (1) consummate the Debt Financings at the time the Debt Financings are to be consummated (including the applicable components of adjusted EBITDA derived from the Company’s financial information) and (2) in the event that the Note Escrow Closing occurs, to satisfy any disclosure obligations between the Note Escrow Closing and the ~~other persons providing or committing~~ Closing under the indenture governing the Notes (which disclosure requirements shall not require the provision of any type of information that is not required by paragraph 8 of Exhibit D to ~~provide~~ the Debt Financing Commitment) and (B) furnishing Parent with the Required Financial Information; (iii) assisting with the preparation of materials for rating agency presentations, offering documents, bank information memoranda and similar documents required in connection with the Financing; (iv) executing and delivering any necessary pledge and other security documents, guarantees, mortgages, other definitive financing documents and other certificates or documents as may reasonably be requested by Parent and otherwise reasonably facilitating the granting of a security interest (and perfection thereof) in collateral; (v) providing all documents and other information relating to ~~comply with their obligations under~~ the Company and its Subsidiaries reasonably required to enable the delivery of any customary negative assurance opinion and customary comfort letters relating to the Debt ~~Commitment Letter~~ Financings and ~~definitive financing agreements and~~ obtaining the consents of the Company’s accountants for use of their reports on the audited financial statements of the Company in any materials relating to ~~fund on or before the Effective Time~~ the Debt Financing. ; (vi) using reasonable best efforts to obtain the Company’s accountants’ comfort letters, the legal opinions, surveys and title insurance at the expense of and as reasonably requested by Parent ~~shall keep~~ on behalf of the Debt Financing Sources; (vii) providing unaudited consolidated monthly financial statements of the Company ~~informed on~~ (excluding footnotes) consisting of a ~~current basis~~ balance sheet and in income statement, to the extent the Company customarily prepares such financial statements; (viii) using commercially reasonable ~~detail~~ efforts to ensure that the Debt Financing Sources benefit from the existing lending relationships of the ~~status~~ SunGard Entities; (ix) cooperating reasonably with the Financing Sources requests for due diligence to the extent customary and reasonable; (x) arranging for customary lien and guarantee terminations or releases, as applicable, relating to indebtedness of the SunGard Entities to be delivered at or prior to the Asset Closing; (xi) at least five (5) Business Days prior to the Closing Date, providing all documentation and other information about the Company and each of its ~~efforts to arrange the Debt Financing, and, promptly following request~~ Subsidiaries as is reasonably requested in writing by ~~the Company, provide to the Company copies of all executed Debt Financing Agreements.~~ Parent at least ten (~~c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2~~10) Business ~~Days, if at any time~~ Days prior to the Closing Date ~~(i)~~ in connection with the Debt ~~Commitment Letter is terminated for any reason,~~ Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations including without limitation the USA PATRIOT Act; (iixii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the ~~case~~ event that an Escrow Demand Notice (as defined in the Fee Letter) is delivered, the SunGard Entities will deliver to Parent no later than March 31, 2012 all Required Financial Information (with the Required Financial Information for purposes of this clause (xii) being determined as if all of the Debt Financing were to be marketed in April 2012 and issued and funded on May 1, 2012); and (xiii) if the Note Escrow Closing occurs, delivering to Parent on or prior to May 5, 2012, financial statements and financial data regarding the Company and its Subsidiaries, including the related managements’ discussion and analysis of financial condition and results of operations covering the financial periods of such financial statements, of the type and form that would be required to be included under Items 1, 2 and 3 of Part I of Form 10-Q (but excluding information required by Regulation S-X Rule 3-10) if the Company were required to file a quarterly report on Form 10-Q for the most recently ended fiscal quarter, as well as (A) components of adjusted EBITDA and (B)) research and development expense, in each case derived from the financial information of the Company and its Subsidiaries, that would be included in a customary 144A offering memorandum by the Company; provided, however, that nothing herein shall require such ~~breach~~ cooperation to the extent it would interfere unreasonably with the business or ~~default~~ operations of the Company Entities or require the disclosure of information which SunGard Data or the Company reasonably determines would reasonably be expected to ~~affect~~ jeopardize the ~~availability~~ attorney-client or other similar privilege of a SunGard Entity or any of its Subsidiaries or violate any Law or any Contract to which such SunGard Entity or any of its Subsidiaries is a party; and provided, further, that the Company shall not be required to enter into or perform under any agreement with respect to the Financing that is not contingent upon the Closing or that would be effective prior to or simultaneous with the Closing (in each case other than items specified in clause (ix) relating to assets being purchased in the Asset Purchase Agreement, which the Company shall not be required to enter into or perform if they would be effective prior to the Applicable Closing). Neither the SunGard Entities nor the Company shall be required to pay any commitment or other similar fee or make any other payment (other than reasonable out of pocket costs) or provide or agree to provide any indemnity in connection with the Financing or any of the foregoing prior to the Closing. Datatel shall indemnify and hold harmless the SunGard Entities, the Company, and their respective Subsidiaries and Representatives from and against any and all liabilities, Losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with the arrangement of the Debt Financing (including actions taken at the request of Parent in accordance with this Section 7.15 other than actions pursuant to clause (x)) and any information (other than information furnished by or ~~(iii~~on behalf of the SunGard Entities, the Company or their respective Subsidiaries) ~~a counterparty indicates~~ utilized in ~~writing~~ connection therewith. Datatel shall, promptly upon request by SunGard Data, reimburse the SunGard Entities, the Company and their respective Subsidiaries for all documented and reasonable out of pocket costs incurred by the SunGard Entities, the Company and their respective Subsidiaries in connection with such cooperation. Without granting any of its ownership or ~~orally that it will not provide~~other rights, ~~or it refuses~~ the Company hereby consents to ~~provide, all or any portion~~ the use of its and its Subsidiaries’ logos in connection with the Debt Financing contemplated by the Debt ~~Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by~~ Financing Commitment; provided that the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to ~~substitute the net cash proceeds received by Parent after the date hereof and~~ review any documentation containing such logos prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided their use, and provided, further, that ~~(v)~~ such ~~offering or other incurrence of debt does not result~~ logos are used solely in a ~~breach~~ manner that is not intended to nor reasonably likely to harm or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies disparage the Company ~~of such substitution and reduction and (z) true, correct and complete copies of each material amendment~~ or ~~modification to~~ the ~~Debt Commitment Letter relating thereto will be promptly provided to~~ Company Subsidiaries or the ~~Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations~~ reputation or goodwill of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectSubsidiaries. (e) On Unless the ~~Closing Date~~Marketing Period has ended on or prior to February 10, ~~Parent shall provide all funds required to effect the repayment of all indebtedness under~~ 2012, the Company ~~Credit Agreement in full in accordance with~~ and Datatel shall use their respective reasonable best efforts to cause their respective independent accounting firms to complete as promptly as reasonably practical their audit of the consolidated financial statements of the Company ~~Credit Agreement~~and Datatel, ~~subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to~~ respectively, for the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.fiscal year ended Decem

Appears in 2 contracts

Sources: Merger Agreement (Sungard Capital Corp Ii), Merger Agreement (GL Trade Overseas, Inc.)

Appears in 2 contracts

Sources: Merger Agreement (Virtu Financial, Inc.), Merger Agreement (Investment Technology Group, Inc.)

Financing. (a) ~~Subject to~~ From and after the ~~terms and conditions~~ date hereof until the earlier of the Completion or the termination of this ~~Agreement~~Agreement pursuant to and in accordance with Article IX, in a timely manner so as not to delay the Completion, Parent shall use its reasonable best efforts to (i) take, or cause to be taken, all ~~actions~~ appropriate action, and to do, or cause to be done, all things necessary, proper or advisable ~~or proper~~ to ~~arrange and obtain~~ consummate, no later than the ~~Debt~~ date the Completion is required to occur pursuant to this Agreement, the Financing on the terms set forth in the Debt Agreement and (ii) satisfy or cause to be satisfied (or waived) on a timely basis all conditions to funding described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunderAgreement. Parent shall not, without the ~~Company’s~~ prior written ~~consent~~consent of the Company, ~~permit~~ agree to, or permit, any amendment, ~~supplement~~restatement, ~~replacement or modification to be made to~~amendment and restatement, ~~or any waiver of any provision under, the Debt Commitment Letter if such amendment~~replacement, supplement, ~~replacement~~or other modification of, ~~modification~~ or waiver or consent under, any provision of the Debt Agreement that would (Ai) ~~reduces~~ reasonably be expected to adversely affect the occurrence of Completion, (ii) reduce the aggregate amount of the ~~cash proceeds from~~ Financing below the ~~Debt Financing or~~ amount required at Completion, (Biii) ~~imposes~~ impose new or additional conditions precedent to the ~~initial~~ funding ~~or otherwise expands any~~ of the Financing or expand upon any existing conditions precedent to the ~~receipt~~ funding of the Financing described in the Debt ~~Financing, or otherwise expands, amends or modifies any other provision~~ Agreement that would make the funding of the ~~Debt Commitment Letter~~ Financing less likely to occur in ~~a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date,~~ any material respect or (yiv) ~~adversely~~ affect the ability of Parent to enforce its rights against the other parties to the Debt ~~Commitment Letter or~~ Agreement. Upon the ~~definitive agreements with respect thereto (provided~~Company’s written request, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall ~~promptly~~ deliver to the Company ~~true, complete and correct~~ copies of any ~~such~~ amendment, ~~modification~~ restatement, amendment and restatement, replacement, supplement, modification, waiver or ~~replacement~~consent with respect to the Debt Agreement promptly following the effectiveness thereof. (b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the ~~Debt~~ Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent Agreement becomes unavailable regardless of the ~~Company~~reason therefor (as determined by Parent in its reasonable discretion), ~~take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.~~ (di) Parent shall ~~have~~ notify the ~~right~~ Company in writing of such unavailability and the reason therefor and (ii) Parent shall use its reasonable best efforts, and shall cause each of its Subsidiaries to ~~substitute~~ use their reasonable best efforts, to obtain as promptly as practicable following the ~~net cash proceeds received by Parent after~~ occurrence of such event, alternative debt financing for any such portion from alternative sources (the ~~date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes~~“Alternative Financing”) ~~by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result~~ in ~~a breach or default under~~an amount sufficient, ~~or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction,~~ when taken together with ~~other~~ cash ~~and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds~~ of ~~such debt offerings or other incurrences have been received by~~ Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries ~~pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have~~ and the ~~right to substitute commitments in respect~~ other sources of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents funds immediately available to ~~Parent, is sufficient~~ Parent at the Completion to pay ~~all amounts required to be paid in connection with~~ the ~~transactions contemplated by this Agreement~~ Financing Amounts and ~~all~~ on terms and conditions ~~precedent to funding of such financing are~~that, in respect of certainty of funding, either (x) are equivalent to (or more favorable to ~~the Company~~ Parent than) the conditions ~~precedent~~ set forth in the Debt ~~Commitment Letter~~Agreement or (y) would not be expected to prevent, delay or impede Completion. Upon the Company’s written request, Parent shall deliver to ~~supplement or replace~~ the ~~Debt Financing (“Alternative Debt Financing”). True~~Company true, correct and complete copies of ~~each~~ all contracts pursuant to which any alternative financing ~~commitment~~ source shall have committed to provide any portion of the Alternative Financing promptly following the effectiveness thereof (with any fee letters or “flex” rights redacted in a customary manner as described in Section 6.2(A)(e)(ii)). In addition to the foregoing, the Parent may also obtain Alternative Financing at its sole discretion which replaces the Financing, so long as the Parent is able to give the representations set forth in Section 6.2(A)(e) with respect of to such Alternative Financing as at the date such Alternative Financing becomes effective (with references to “date hereof,” the “Financing,” “Financing Sources” and “Debt ~~Financing~~ Agreement” (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other ~~economic terms~~ like terms) in that ~~do not adversely affect~~ section deemed to have been replaced with references to the ~~enforceability~~date such Alternative Financing, ~~availability~~ the commitments thereunder and the agreements with respect thereto becomes effective). (c) Parent shall provide the Company prompt written notice (i) of any expiration or ~~conditionality~~ termination of, or ~~the aggregate amount of proceeds available under~~any material breach, default or violation by any party to, the Debt Agreement and (ii) of the receipt by Parent of any notice or other communication, in each case from any Financing ~~contained therein redacted)~~Source with respect to any (x) material breach, ~~will be promptly provided~~ default, violation, termination or repudiation by any party to the ~~Company~~Debt Agreement or (y) material dispute or disagreement between or among Parent, on the one hand, and the Financing Sources, on the other hand, including any dispute or disagreement with respect to the obligation to fund the Financing or the amount of the Financing to be funded at Completion. In To the ~~event~~ extent requested in writing by the Company from time to time, Parent shall promptly provide the Company with updates on a reasonably current basis on the status of the Financing. Parent shall, to the extent not publicly filed, provide copies of all executed credit agreements and indentures and any ~~New Debt Commitment Letter~~ amendments, modifications, replacements or waivers relating to the Financing or any Indebtedness that is ~~obtained,~~ a takeout to the Financing (ior notice that such documents have been publicly filed). (d) ~~any reference~~ Notwithstanding anything contained in this Agreement to the ~~“Debt Financing” shall include~~ contrary, Parent expressly acknowledges and agrees that its obligations under this Agreement, including its obligations to consummate the ~~debt financing contemplated by~~ Completion, are not conditioned in any manner upon Parent obtaining the ~~Debt Commitment Letter as modified~~ Financing or any other financing. To the extent Parent obtains Alternative Financing pursuant to ~~clause (ii~~Section 7.6(b) ~~below~~or amends, ~~(ii)~~ replaces, supplements, modifies or waives any ~~reference in this Agreement~~ of the Financing, references to the “Financing,” “Financing Sources” and “Debt ~~Commitment Letter~~Agreement” (and other like terms in this Agreement) shall be deemed to ~~include~~ refer to such Alternative Financing, the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger commitments thereunder and the ~~transactions contemplated by this Agreement~~agreements with respect thereto, or the Financing as so amended, replaced, supplemented, modified or waived.

Appears in 2 contracts

Sources: Transaction Agreement (Avadel Pharmaceuticals PLC), Transaction Agreement (Alkermes Plc.)

Financing. (a) ~~Subject to the terms~~ Parent and ~~conditions of this Agreement, Parent~~ Merger Sub shall use ~~its~~ their reasonable best efforts to ~~take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to~~ arrange ~~and obtain~~ the Debt Financing on the terms and conditions described in the Debt ~~Commitment Letter pursuant to the terms thereof (including any “market flex” provisions)~~ Financing Commitment, including using ~~its~~ their reasonable best efforts to ~~seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s~~(i) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the negotiate definitive agreements with respect thereto and (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement. (b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (Cii) to satisfy on a timely basis ~~(or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger,~~ all conditions applicable to ~~receipt of~~ Parent in such definitive agreements that are within its control. In the ~~full amount~~ event any portion of the Debt Financing at becomes unavailable on the ~~Closing set forth therein~~ terms and conditions contemplated in the Debt Financing Commitment, Parent shall use its reasonable best efforts to arrange to obtain alternative financing from alternative sources on comparable terms or terms not materially less favorable (as determined in the reasonable judgment of Parent) as promptly as practicable following the occurrence of such event. In connection with its obligations under this Section 6.12, Parent shall be permitted to amend, modify or replace the Debt Financing Commitment, provided that ~~are within its control~~ Parent shall not make, agree to or ~~subject~~ allow any modification to ~~its influence and, upon satisfaction~~ or replacement of the conditions precedent to the funding set forth in the Debt Financing Commitment ~~Letter,~~ in a manner more favorable to ~~consummate~~ the parties providing the Debt Financing at without the prior written consent of the Company (which consent shall not be unreasonably withheld, conditioned or ~~prior to~~ delayed). Parent shall give the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding Company prompt notice of any material breach by any party of the Debt Financing ~~will be, satisfied,~~ Commitment of which Parent ~~and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing~~ becomes aware or ~~committing to provide~~ any termination of the Debt Financing ~~to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing~~Commitment. Parent shall keep the Company informed on a reasonably current basis ~~and~~ in reasonable detail of the status of its efforts to arrange the Debt Financing. (b) The Company agrees to provide, ~~and~~and shall cause its Subsidiaries and its and their respective officers, ~~promptly following request~~ employees, Company Representatives and advisors, including legal and accounting advisors, to provide, all reasonable assistance and cooperation (including with respect to timeliness) in connection with the arrangement of the Debt Financing as may be reasonably requested by Parent, including (i) participation in meetings, presentations (including management presentations), drafting sessions and due diligence sessions, (ii) no later than the ~~Company~~Offer Commencement Date, ~~provide~~ furnishing Parent and its financing sources with financial and other pertinent information regarding the Company as may be reasonably requested by Parent, including projections, pro forma statements, all financial statements and other financial data and other pertinent information of the type required by Regulation S-X and Regulation S-K under the Securities Act, (iii) assisting in the preparation of (A) an offering document and other customary marketing materials for any of the Debt Financing and (B) materials for rating agency presentations, (iv) reasonably cooperating with the consummation of the Debt Financing and the syndication and marketing efforts for any of the Debt Financing, including obtaining any rating agency confirmations or approvals for the Debt Financing, (v) providing and executing documents as may be reasonably requested by Parent, including a certificate of the chief financial officer of the Company or any Company Subsidiary with respect to solvency matters, and consents of accountants for use of their reports in any materials relating to the Debt Financing, (vi) reasonably facilitating the pledging of collateral, (vii) using commercially reasonable efforts to obtain accountants’ comfort letters, legal opinions, surveys and title insurance, as reasonably requested by Parent, and (viii) taking all actions reasonably necessary for the Company ~~copies of all executed~~ or any Subsidiary to become the borrower or a guarantor under the Debt Financing ~~Agreements~~prior to or simultaneously with the Closing; provided, however, in each case, that none of the Company or any of its Subsidiaries shall be required to pay any commitment or other similar fee or incur any other liability in connection with the Debt Financing prior to the Effective Time; and provided further, that Parent shall reimburse the Company for reasonable and documented out-of-pocket expenses incurred in connection with such assistance and cooperation. (c) ~~Without limiting the foregoing, Parent agrees to notify~~ All non-public or otherwise confidential information regarding the Company ~~promptly~~obtained by Parent or the Parent Representatives pursuant to Section 6.12(b) shall be kept confidential in accordance with the Confidentiality Agreement; provided, however, that Parent and Merger Sub and its Representatives shall be permitted to disclose information as necessary and consistent with customary practices in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of connection with the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without upon the prior written consent of the ~~Company~~Company (which consent shall not be unreasonably withheld, ~~take any action~~ conditioned or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iiidelayed). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.

Appears in 2 contracts

Sources: Merger Agreement (U.S. Renal Care Inc), Merger Agreement (Dialysis Corp of America)

Financing. (a) ~~Subject to the terms and conditions of this Agreement,~~ Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to ~~arrange~~ consummate and obtain the ~~Debt~~ Financing on the terms and conditions described in the ~~Debt~~ Commitment Letter ~~pursuant to the~~ (or on revised terms ~~thereof (including~~ that do not contain any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that terms which would reasonably be expected to ~~(x)~~ prevent, materially delay or ~~prevent~~ materially impede the ~~funding in full~~ consummation of the ~~Debt~~ Financing ~~(or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter~~ or the ~~definitive agreements with respect thereto (provided~~transactions contemplated by this Agreement), that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement. (b) Parent shall, and shall cause its Affiliates and Representatives to, use its including using reasonable best efforts to (Ai) to maintain in effect the ~~Debt~~ Commitment Letter, (ii) satisfy on a timely basis all conditions to the funding of the Financing set forth in the Commitment Letter, (iii) enforce the terms of the Commitment Letter and (~~provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B~~iv) to negotiate and enter into definitive agreements with respect ~~to the Debt Commitment Letter (the “Debt Financing Agreements”)~~ thereto on the terms and conditions ~~that are not materially less favorable to Parent than those contained in~~ contemplated by the ~~Debt~~ Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. ~~In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied,~~ Parent and Merger Sub ~~shall use their reasonable best efforts to enforce their~~ may enter into or authorize any amendment, replacements, supplement or other modification of, or waive any of its material rights under, ~~and cause~~ the ~~Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt~~ Commitment Letter ~~and definitive financing agreements and~~ without the Company’s prior consent, other than any amendment, replacement, supplement or other modification to ~~fund on~~ or ~~before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail~~ waiver of any provision of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to prevent, materially ~~impair,~~ delay or ~~prevent~~ materially impede the consummation of ~~all~~ the Financing or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement~~, (x)~~ . Parent shall use its reasonable best efforts to extend the ~~proceeds~~ commitment to provide the Financing in accordance with the terms of ~~such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies~~ the ~~Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt~~ Commitment Letter ~~relating thereto will be promptly provided~~ if it becomes necessary to ensure that the ~~Company. If commitments under~~ Financing is available at Closing. (b) In the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or event any portion of the ~~Debt~~ Financing becomes unavailable on the terms and conditions described in or contemplated by the Commitment Letter for any reason, Parent shall, in consultation with the Company, use its reasonable best efforts to arrange to obtain, as promptly as practicable following the occurrence of such event, alternative financing from the same ~~and/or~~ or alternative ~~financing~~ sources ~~so long as~~ (the ~~aggregate~~ “Alternative Financing”) in an amount sufficient to enable Parent to fund the Merger Consideration, which Alternative Financing would not contain any provisions that would reasonably be expected to prevent, materially delay or materially impede the consummation of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (Financing or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement. If an Alternative Financing is obtained pursuant to this Section 5.14(b), Parent shall obtain, and when obtained, provide the Company with a copy of, a new financing commitment that provides for such Alternative Financing, and thereafter the “Commitment Letter” as defined herein shall refer to such financing commitment in respect of the Alternative Financing. (c) Parent acknowledges and agrees that obtaining the Financing is not a condition to the Closing. For the avoidance of doubt, if the Financing has not been obtained, Parent shall continue to be obligated, until such time as the Agreement is terminated in accordance with its terms and subject to the fulfillment or waiver of the condition set forth in Article VI, to complete the Merger on the terms contemplated by this Agreement.

Appears in 2 contracts

Sources: Merger Agreement (Williams Companies Inc), Merger Agreement (Williams Companies Inc)

Financing. (a) Subject to the terms and conditions of this Agreement, ~~Parent~~ Purchaser shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable ~~or proper~~ to arrange and obtain the Debt Financing on the terms and conditions described in or contemplated by the Debt Commitment Letter ~~pursuant~~ and shall not agree to ~~the terms thereof (including~~ any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement amendment or modification to be made to, or any waiver of any provision ~~under,~~ or remedy under the Debt Commitment Letter without the prior written consent of the Company if such ~~amendment~~amendments, ~~supplement, replacement, modification~~ modifications or ~~waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing~~ waivers would or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) ~~delay~~ reduce the aggregate amount of the Debt Financing below the amount contemplated in the Debt Commitment Letter or ~~prevent~~ (y) impose new or additional conditions to the ~~funding in full~~ receipt of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, ~~that Parent~~ that, for the avoidance of doubt, Purchaser may replace or amend the Debt Commitment Letter to add ~~or replace~~ lenders, lead arrangers, bookrunners, syndication agents or similar ~~entities so long as~~ entities, if the addition of such ~~action~~ additional parties, in the aggregate, would not ~~reasonably be expected to~~ prevent or materially delay or ~~prevent~~ impair the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement. (b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability availability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations financing under the Debt Commitment Letter~~, and (E) to consummate the Debt Financing at or prior to the Effective Time~~). In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent Purchaser shall keep the ~~Company~~ Seller Representatives reasonably informed ~~on a current basis and in reasonable detail~~ of the status of ~~its~~ Purchaser’s efforts to arrange the Debt Financing~~, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. (c)~~ . Without limiting the generality of the foregoing, ~~Parent agrees to notify~~ Purchaser shall give the ~~Company promptly, and in~~ Seller Representatives prompt notice: (A) of any material breach or material default (or any event ~~within two (2~~or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or material default) ~~Business Days, if at~~ by any ~~time prior~~ party to ~~the Closing Date (i)~~ the Debt Commitment Letter ~~is terminated for any reason,~~ or definitive document related to the Debt Financing of which Purchaser becomes aware; (iiB) ~~Parent becomes aware~~ of the receipt of any ~~breach~~ written notice or ~~default (A)~~ other written communication from any party to the Debt Commitment Letter with respect to any breach, default, termination or repudiation by any ~~Financing Source~~ party to the Debt Commitment Letter or any definitive document related to the Debt Financing ~~Agreement~~ or ~~(B)~~ any ~~other party to~~ provisions of the Debt Commitment Letter or any ~~Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected~~ definitive document related to ~~affect the availability of~~ the Debt ~~Financing or~~ Financing; and (~~iii~~C) ~~a counterparty indicates in writing or orally that it~~ if Purchaser will not ~~provide, or it refuses~~ be able to ~~provide,~~ obtain all or any portion of the Debt Financing on the terms, in the manner or from the sources contemplated by the Debt Commitment Letter on or the ~~terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating~~ definitive documents related to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or . If any portion of the Debt Financing ~~by reducing commitments under~~ becomes unavailable on the ~~Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result~~ terms and conditions contemplated in ~~a breach or default under, or violation of,~~ the Debt Commitment Letter, ~~(w) the aggregate~~ Purchaser shall use its reasonable best efforts to arrange and obtain alternative financing from alternative sources in an amount ~~of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is~~ sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with consummate the transactions contemplated by this Agreement upon terms and ~~all~~ conditions ~~precedent~~ not less favorable, taken as a whole, to ~~funding~~ Purchaser (in the reasonable judgment of ~~such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than~~Purchaser) ~~the conditions precedent set forth~~ than those in the Debt Commitment ~~Letter~~Letter as promptly as practicable following the occurrence of such event but no later than the Business Day immediately prior to the Closing Date. For the avoidance of doubt, in no event shall Purchaser be required to ~~supplement~~ seek or ~~replace~~ obtain equity financing. (b) Prior to the Closing, the Company shall use reasonable best efforts and shall cause the Company Subsidiaries to use reasonable best efforts, and shall use its reasonable best efforts to cause its respective representatives to, provide to Purchaser, at Purchaser’s sole expense and in each case without undue hardship on or interference to the Company or any Company Subsidiary, all reasonable cooperation reasonably requested by Purchaser that is necessary in connection with the Debt Financing ~~(“Alternative Debt Financing”). True, correct and complete copies of each~~ or any alternative financing ~~commitment~~ arranged by Purchaser in ~~respect of such Alternative~~ compliance with Section 6.6(a), including: (i) furnishing Purchaser and the Debt Financing ~~(each, a “New~~ sources and any alternative sources arranged by Purchaser in compliance with Section 6.6(a) all financial and other information relating to the Company and Company Subsidiaries as Purchaser shall reasonably request in order to consummate the Debt ~~Commitment Letter”~~Financing or any alternative financing arranged by Purchaser in compliance with Section 6.6(a), ~~together with~~ including, if Purchaser is to pursue equity financing by way of a public offering of its share capital, all ~~related fee letters~~ Company information, financial statements and ~~associated engagement letters (solely in the case~~ financial data of the ~~fee letter~~type required in registration statements on an applicable form by Regulation S-X and Regulation S-K under the Securities Act (subject to exceptions customary for private placements pursuant to an applicable exemption under the Securities Act) and of a type and form customarily included in private placements pursuant to an applicable exemption under the Securities Act for financings similar to the Debt Financing or any alternative financing arranged by Purchaser in compliance with Section 6.6(a) and subject to exceptions customary for such financings (including, to the extent applicable with ~~only~~ respect to such financial statements, the ~~fee amounts~~report of the Company’s auditors thereon and related management discussion and analysis of financial condition and results of operations), (ii) using reasonable best efforts to help the financing sources benefit from the existing lending relationships of the Company and the Company Subsidiaries; (iii) participating in a reasonable number of meetings (including customary one-on-one meetings with the parties acting as lead arrangers or agents for, ~~pricing, “market flex” provisions~~ and ~~other economic terms that do not adversely affect the enforceability, availability or conditionality~~ prospective lenders and purchasers of~~, or the aggregate amount of proceeds available under~~, the Debt Financing ~~contained therein redacted~~or any alternative financing arranged by Purchaser in compliance with Section 6.6(a) and senior management and representatives, with appropriate seniority and expertise, of the Company), ~~will be promptly provided~~ presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies in connection with the Debt Financing or any alternative financing arranged by Purchaser in compliance with Section 6.6(a); (iv) assisting with the preparation of materials for rating agency presentations, bank information memoranda, offering documents, private placement memoranda and similar documents required in connection with the Debt Financing or any alternative financing arranged by Purchaser in compliance with Section 6.6(a) (including requesting any consents of accountants for use of their reports in any materials relating to the ~~Company. In~~ Debt Financing or any alternative financing arranged by Purchaser in compliance with Section 6.6(a) and the ~~event~~ delivery of one or more customary representation letters), (v) facilitating communications by Purchaser with existing lenders of the Company and the Company Subsidiaries; (vi) obtaining accountants’ comfort letters and legal opinions as reasonably requested by Purchaser and facilitating the pledging of collateral by Purchaser and in connection with the Debt Financing or any ~~New Debt Commitment Letter is obtained~~alternative financing arranged by Purchaser in compliance with Section 6.6(a), including, executing and delivering any documents as may be reasonably requested by Purchaser (iincluding a certificate of the financial director or another officer of similar standing of the Company with respect to solvency matters as of the Closing, on a pro forma basis); (vii) ~~any reference in this Agreement~~ causing the taking of corporate actions (subject to the “occurrence of the Closing) by the Company and the Company Subsidiaries reasonably necessary to permit the completion of the Debt ~~Financing” shall include~~ Financing or any alternative financing arranged by Purchaser in compliance with Section 6.6(a); (viii) facilitating the ~~debt financing~~ execution and delivery at the Closing of definitive documents related to the Debt Financing on the terms contemplated by the Debt Commitment Letter ~~as modified pursuant~~ or any alternative financing arranged by Purchaser in compliance with Section 6.6(a), and (ix) cooperating with consultants or others engaged to ~~clause (ii) below~~undertake field examinations and appraisals, ~~(ii) any reference~~ including furnishing information to such persons in ~~this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question~~ respect of accounts receivable, inventory and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectother applicable assets. (ec) On The Company hereby consents to the reasonable use by Purchaser prior to Closing ~~Date, Parent shall provide all funds required to effect~~ of the ~~repayment of all indebtedness under~~ Company’s and the Company ~~Credit Agreement~~ Subsidiaries’ logos for the sole purpose of obtaining the Debt Financing or any alternative financing arranged by Purchaser in ~~full in accordance with the Company Credit Agreement, subject to~~ compliance with Section ~~6.14(a)(iii~~6.6(a), which right to use shall not be licensed or assigned by Purchaser to any third party. (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.

Appears in 2 contracts

Sources: Share Purchase Agreement, Share Purchase Agreement (Home Inns & Hotels Management Inc.)

Financing. ~~(a)~~ 7.22.1. Subject to the terms and conditions of this Agreement, ~~Parent~~ Purchaser shall use reasonable best efforts to obtain the Financing on the terms and conditions set forth in the Financing Letter (or on terms which would not be reasonably expected to delay or prevent the Closing or make the funding of the Financing less likely to occur), and use its reasonable best efforts to (a) maintain in effect the Financing Letter and negotiate and execute definitive agreements with respect to the Financing Letter on the terms and conditions set forth in the Financing Letter (or on terms which would not be reasonably expected to delay or prevent the Closing or make the funding of the Financing less likely to occur), (b) satisfy on a timely basis all conditions applicable to Purchaser set forth in such definitive agreements that are within its reasonable control and not take or fail to take any action that would be expected to prevent, impede or delay the availability of the Financing, and (c) consummate the Financing contemplated by the Financing Letter at or prior to the Closing. In the event that all conditions in the Financing Letter have been satisfied or upon funding will be satisfied, Purchaser shall use its reasonable best efforts to ~~take, or~~ cause the lenders providing the Financing to ~~be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing~~ fund on the ~~terms~~ Closing Date the Financing required to consummate the transactions contemplated by this Agreement and ~~conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to~~ Purchaser shall otherwise enforce its rights under the ~~Debt Commitment~~ Financing Letter, including by seeking specific performance of the parties thereunder. 7.22.2. Purchaser shall not amend, alter, or waive, or agree to amend, alter or waive (in any case, whether by action or inaction), any term of the Financing Letter ~~in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not,~~ without the ~~Company’s~~ prior written ~~consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver~~ consent of ~~any provision under,~~ the ~~Debt Commitment Letter~~ Seller if such amendment, ~~supplement, replacement, modification~~ alteration or waiver ~~(A)~~ reduces the aggregate amount of the ~~cash proceeds from the Debt~~ Financing or would reasonably be expected to delay or prevent the Closing or make the funding of the Financing less likely to occur; provided, however, that Purchaser may (Ba) ~~imposes new~~ replace and/or amend the Financing Letter so long as (i) the terms would not be reasonably expected to delay or ~~additional conditions~~ prevent the Closing or make the funding of the Financing less likely to ~~the initial funding or otherwise expands any of~~ occur and (ii) the conditions to the ~~receipt~~ Financing set forth in the Financing Letter as of the ~~Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter~~ Execution Date would not be expanded in a manner that would reasonably be expected to ~~(x)~~ delay or prevent the ~~funding in full of the Debt Financing (~~Closing or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement. (b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into ~~definitive agreements with respect~~ a Capital Markets Transaction in lieu of or in addition to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the ~~Debt Commitment Letter on~~ Financing Letter; and in any such event, Purchaser shall disclose to the Seller its intention to obtain such alternative financing or to engage in such Capital Markets Transaction and shall keep the Seller informed of the terms ~~set forth therein~~thereof. ~~Parent~~ The term “Financing or Capital Markets Transaction” shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. mean (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (wA) the ~~aggregate amount of the Debt~~ Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the ~~Debt Commitment~~ Financing Letter ~~as modified pursuant to clause (ii) below, (ii) any reference in this Agreement~~ to the ~~“Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is~~ extent not so superseded ~~by a New Debt Commitment Letter~~ at the time in question and ~~each New Debt Commitment Letter~~ any alternative financing to the extent then in effect, and (~~iii~~B) any ~~reference~~ Capital Markets Transaction. Purchaser shall promptly (and in ~~this Agreement to “fee letter” shall be deemed to include~~ any ~~fee letter relating to~~ event within two Business Days) notify the ~~Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at~~ Seller of the ~~time in question and each New Debt Commitment Letter to~~ expiration or termination of the ~~extent then in effect~~Financing Letter. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.

Appears in 2 contracts

Sources: Asset Purchase Agreement (Laboratory Corp of America Holdings), Asset Purchase Agreement (Genzyme Corp)

Financing. (a) Subject to the terms and conditions of this Agreement, each of Parent and Merger Sub shall use its reasonable best efforts to ~~take~~(i) maintain in full force and effect the Equity Commitment Letter until the Transactions are consummated, (ii) satisfy, or cause to be ~~taken~~satisfied, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement. (b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis ~~(or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger,~~ all conditions to ~~receipt~~ the closing of and funding under the ~~full amount of the Debt Financing at the Closing set forth therein~~ Equity Commitment Letter applicable to Parent and/or Merger Sub that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Lettercontrol, and (Eiii) to consummate the ~~Debt~~ Equity Financing at or prior to the Effective ~~Time. In~~ Time in accordance with the ~~event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding~~ terms of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Equity Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing AgreementsLetter. (cb) ~~Without limiting~~ Notwithstanding anything to the ~~foregoing~~contrary in this Agreement, ~~Parent agrees~~ from time to ~~notify the Company promptly,~~ time and ~~in any event within two (2) Business Days, if~~ at any time prior to the ~~Closing Date~~ Closing, Parent shall be entitled to adjust the number of Rollover Shares and/or the amount of the Equity Financing and, in connection therewith, amend the applicable Support Agreement and/or the Equity Commitment Letters, or enter into additional Support Agreements and/or Equity Commitment Letters, in each case solely to give effect to such adjustments; provided that (i) ~~the Debt Commitment Letter is terminated for any reason, (ii)~~ Parent ~~becomes aware of any breach or default (A) by any Financing Source party~~ shall deliver a prior written notice to the ~~Debt Commitment Letter or~~ Company and any ~~Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if~~such notice shall be accompanied by, in the case of ~~this clause~~ any adjustment to the number of Rollover Shares, a true and complete copy of the applicable draft amended or additional Support Agreements, and in the case of any adjustment to the amount of the Equity Financing, a true and complete copy of the applicable draft amended or additional Equity Commitment Letters, (Bii) any amended or additional Equity Commitment Letters so entered into shall not impose new or additional conditions precedent or adversely change the conditions precedent set forth therein and shall be on other terms and conditions not materially less favorable (from the standpoint of the Company), ~~such breach or default would reasonably be expected~~ in the aggregate, to ~~affect the availability of the Debt Financing or~~ Parent and Merger Sub than those contained in comparable Equity Commitment Letters then existing, (iii) ~~a counterparty indicates in writing~~ after giving effect to such adjustment, and taking into consideration any such amended or ~~orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt~~ additional Support Agreement and Equity Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation ofLetters, the ~~Debt~~ Equity Commitment ~~Letter, (w) the~~ Letters shall provide for an aggregate amount of ~~the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent,~~ proceeds that is sufficient for Parent and the Surviving Entity to pay ~~all~~ (x) the Merger Consideration, and (y) any other amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations consummation of the ~~Company~~ Transactions on the terms and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions conditions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effecthereby, and (~~iii~~iv) ~~any reference in this Agreement~~ such adjustment would not otherwise reasonably be expected to ~~“fee letter” shall be deemed to include any fee letter relating to~~ prevent, delay or impair the ~~Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date,~~ ability of Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or ~~any of its Affiliates’ obtaining funds~~ Merger Sub to consummate the ~~Merger and the transactions contemplated by this Agreement~~Transactions.

Appears in 2 contracts

Sources: Merger Agreement (Ma Baoli), Merger Agreement (BlueCity Holdings LTD)

Financing. (a) ~~Subject~~ Notwithstanding anything herein to the ~~terms and conditions of this Agreement~~contrary, Parent and Merger Sub acknowledge and agree that obtaining the Financing or any Alternate Financing is not a condition to consummation of the Transactions, and that, irrespective and independently of the availability of the Financing or any Alternate Financing, Parent and Merger Sub shall be obligated to pay for the tendered Shares and consummate the Merger and the other Transactions as provided herein, subject to the satisfaction or waiver of the Tender Offer Conditions or the conditions set forth in Article VI, as applicable. (b) Each of Parent and Merger Sub shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable ~~or proper~~ to arrange and obtain the ~~Debt~~ Financing on the terms and subject to the conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent Financing Commitments, shall not, ~~without~~ until after the ~~Company’s prior written consent~~Effective Time, permit, effect or cause to be effected any voluntary or mandatory termination, prepayment or reduction in the aggregate amount of the Financing or the respective commitments contained in the Financing Commitments, and shall not permit any ~~amendment, supplement, replacement~~ amendment or modification to be made to, or any waiver by Parent or Merger Sub of any provision ~~under,~~ or remedy under the ~~Debt Commitment Letter~~ Financing Commitments if such amendment, ~~supplement, replacement,~~ modification or waiver would (Ai) ~~reduces~~ reduce the aggregate amount of the ~~cash proceeds from~~ Financing (including by changing the ~~Debt Financing~~ amount of fees to be paid or original issue discount of the Financing) or (Bii) ~~imposes~~ impose new or additional ~~conditions to the initial funding~~ conditions, or otherwise ~~expands~~ amend, modify or expand any ~~of the conditions~~ conditions, to the receipt of the ~~Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter~~ Financing in a manner ~~that~~ that, individually or in the aggregate with other such amendments, modifications or waivers, would reasonably be expected to (xA) have a Parent Material Adverse Effect or (B) delay or ~~prevent~~ make the funding ~~in full~~ of the ~~Debt~~ Financing (or satisfaction of the conditions to obtaining the ~~Debt~~ Financing) ~~on the Closing Date,~~ less likely to occur or (yC) adversely ~~affect~~ impact the ability of Parent or Merger Sub to enforce ~~its~~ their rights against the other parties to the ~~Debt Commitment Letter~~ Financing Commitments or the definitive agreements with respect ~~thereto~~ thereto; it being understood and agreed that, notwithstanding the foregoing provisions of this sentence, Parent or Merger Sub may reduce (~~provided~~through voluntary or mandatory terminations or otherwise) the aggregate amount of the Financing in connection with any cash received by Parent or Merger Sub from other sources (including by reason of a capital market or other financing transaction) that is available to satisfy the obligations of Parent or Merger Sub under this Agreement. Subject to the limitations set forth in Section 4.2(f), ~~that~~ Parent and Merger Sub may replace or amend the ~~Debt Commitment Letter~~ Financing Commitments to add ~~or replace~~ agents, co-agents, lenders, ~~lead~~ arrangers, joint bookrunners, ~~syndication agents~~ managers or ~~similar~~ other entities ~~so long~~ that have not executed the Financing Commitments as of the date hereof, if the addition of such ~~action~~ additional parties, individually or in the aggregate with other such additions, would not reasonably be expected to prevent, delay or ~~prevent~~ impair the ~~Closing)~~availability of the financing under the Financing Commitments or have a Parent Material Adverse Effect. Without limiting the foregoing, Parent and Merger Sub shall ~~promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement. (b) Parent shall, and shall cause its Affiliates and Representatives to,~~ use ~~its~~ their reasonable best efforts to (Au) to maintain in effect the ~~Debt Commitment Letter (provided that~~ Financing Commitments until the ~~Debt Commitment Letter may be amended~~Offer, ~~supplemented, replaced, modified or waived as provided in this Section 6.13)~~the Merger and the other Transactions are consummated, (Bv) satisfy (or have waived) all conditions and covenants applicable to ~~negotiate~~ Parent and Merger Sub in the Financing Commitments at or prior to the Acceptance Time or the Closing, as applicable, and otherwise comply with their obligations under the Financing Commitments, (w) enter into definitive agreements with respect to the ~~Debt Commitment Letter~~ Financing Commitments on the terms and subject to the conditions (including the ~~“Debt~~ flex provisions) contemplated by the Financing ~~Agreements”~~Commitments, (x) enforce their rights under the Financing Commitments, including any rights to cause the Financing Sources and other Persons providing, on the terms and conditions ~~that are not materially less favorable~~ set forth therein, the Financing to ~~Parent than those contained in~~ fund, on the ~~Debt Commitment Letter~~day of the consummation of the Offer, ~~(C)~~ the Merger or the other Transactions, as applicable, the Financing contemplated to ~~satisfy~~ be funded on ~~a timely basis~~ such day by the Financing Commitments (or ~~obtain the waiver of), and in a manner that will not impede the ability of the parties~~ such lesser amount as may be required to consummate the ~~Merger~~Offer, ~~all conditions to receipt of~~ the ~~full amount of~~ Merger and the ~~Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to~~ other Transactions) and (y) consummate the ~~Debt~~ Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding consummation of the ~~Debt Financing will be~~Offer, ~~satisfied~~the Merger or the other Transactions, as applicable. Parent and Merger Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a reasonably current basis ~~and~~ in reasonable detail of the status of its efforts to arrange the ~~Debt Financing~~Financing (or replacement thereof) as the Company may reasonably request, ~~and, promptly following request by~~ and shall give the ~~Company, provide~~ Company prompt notice of any development with respect to the ~~Company copies of all executed Debt~~ Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to ~~materially impair, delay~~ have a Parent Material Adverse Effect; provided that in no event will Parent or ~~prevent consummation of all~~ Merger Sub be under any obligation to disclose any information that is subject to attorney-client or similar privilege if Parent and Merger Sub shall have used their reasonable best efforts to disclose such information in a way that would not waive such privilege. (i) If any portion of the ~~Debt Financing~~Financing becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Financing Commitments, Parent shall use its reasonable best efforts to arrange and obtain alternative financing from alternative sources on terms and subject to the conditions that are no less favorable, in the aggregate, to Parent (taking into account the flex provisions set forth in the Financing Commitments) than those set forth in the Financing Commitments, in an amount sufficient to consummate the Offer, the Merger and the other Transactions as promptly as practicable following the occurrence of such event. (dii) Parent shall have the right from time to time to substitute ~~the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings~~ other debt or ~~other incurrences of debt (including notes) by Parent~~ equity financing for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing aresource, in ~~respect of certainty of funding~~each case, ~~equivalent to (or more favorable~~ in a manner not materially less beneficial to the ~~Company than)~~ Company, Parent and Merger Sub as compared to the ~~conditions precedent set forth~~ Financing Commitments (and no less beneficial in ~~the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies~~ terms of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, confidentiality or the aggregate amount of ~~proceeds~~ funds available ~~under~~under the Financing); provided, ~~the Debt Financing contained therein redacted)~~however, ~~will~~ that any such financing arranged in accordance with this Section 5.13(b)(ii) shall be ~~promptly provided~~ subject to the ~~Company~~same limitations that apply to the Financing Commitments as set forth in the first sentence of this Section 5.13(b). ~~In the event any New Debt Commitment Letter is obtained,~~ For purposes of this Agreement: (iA) any ~~reference~~ financing arranged in accordance with Section 5.13(b)(i) above or this ~~Agreement~~ Section 5.13(b)(ii) shall be referred to as the “~~Debt~~ Alternate Financing”; (B) the term “Financing” shall be deemed to include the debt financing contemplated by the ~~Debt Commitment Letter~~ Financing Commitments as permitted to be amended or modified ~~pursuant to clause~~ by this Section 5.13(b) and/or any Alternate Financing; and (iiC) ~~below, (ii) any reference in this Agreement to~~ the term “~~Debt Commitment Letter~~Financing Commitments” shall be deemed to include such Financing Commitments as permitted to be amended or modified by this Section 5.13(b) and/or any new commitment letter (the ~~Debt Commitment Letter which is not superseded by a~~ “New ~~Debt Commitment Letter at the time in question~~ Financing Commitments”) entered into with respect to any Alternate Financing (it being understood and ~~each New Debt Commitment Letter~~ agreed that any Alternate Financing shall be subject to the ~~extent then in effect,~~ terms and ~~(iii) any reference in this Agreement~~ conditions hereof that apply to ~~“fee letter”~~ Financing Commitments). Parent and Merger Sub shall ~~be deemed to include any fee letter relating to~~ provide the ~~Debt Commitment Letter that is not superseded by~~ Company with a copy of any New ~~Debt Commitment Letter at~~ Financing Commitments obtained by Parent or Merger Sub in connection with an Alternate Financing as promptly as practicable following the ~~time in question~~ execution thereof (other than fees and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iiiother information customarily redacted from such agreements). (fc) ~~Notwithstanding anything~~ Prior to the ~~contrary contained herein~~Acceptance Time, ~~Parent’s obligations hereunder~~ the Company shall (and shall cause its Subsidiary to) provide to Parent and Merger Sub, and shall use reasonable best efforts to cause Representatives of the Company and its Subsidiary to provide to Parent and Merger Sub, all cooperation reasonably requested in writing by Parent and Merger Sub that is necessary in connection with the Financing, including using reasonable best efforts to, in each case to the extent reasonably requested: (i) cooperate with the marketing efforts of Parent and lenders for any of the Financing, including using reasonable best efforts to cause its Representatives to be available, during normal working hours and upon reasonable notice, to participate in meetings, presentations, road shows, due diligence sessions and sessions with rating agencies, and using its reasonable best efforts to ensure that any syndication effort benefits from any existing banking relationship; (ii) assist with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses, road show presentations and similar documents necessary, proper or advisable in connection with the Financing; (iii) provide to Parent and Merger Sub, and use reasonable best efforts to cause Representatives of the Company and its Subsidiary to provide to Parent and Merger Sub all financial information regarding the Company and its Subsidiary required to be delivered pursuant to Section 2 of Exhibit B of the Financing Commitments or required in connection with the preparation of the Offering Documents referred to in Section 8 of Exhibit B of the Financing Commitments; (iv) obtain consent from its certified independent auditors to SEC filings and offering memoranda that include or incorporate Company consolidated financial information (with such changes as the Company and its auditors deem necessary or appropriate), in each case, to the extent such consent is required, together with auditors’ reports and comfort letters with respect to financial information relating to the Company and its Subsidiary in customary form; (v) provide information regarding the Company and its Subsidiary reasonably required to assist in the preparation of pro forma financial statements by Parent and Merger Sub; provided that it is understood that assumptions underlying the pro forma adjustments to be made are ~~not~~ the sole responsibility of Parent and/or Merger Sub; (vi) provide assistance in the preparation of definitive financing documents and providing any sources of Financing (subject to confidentiality) with reasonable access to the properties, books and records of the Company and its Subsidiary; (vii) provide other information regarding the Company and its Subsidiary reasonably required by Parent and Merger Sub in connection with preparation of the Offering Document referred to in Section 8 of Exhibit B of the Financing Commitments (it being understood that preparation of the Offering Document is the responsibility of Parent and Merger Sub); (viii) provide reasonable cooperation with the Financing Sources, other potential financing sources and their respective agents with respect to their due diligence, including access to documentation reasonably requested by persons in connection with capital markets transactions; and (ix) provide all documentation and other information required by any Governmental Entity with respect to the Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, and in any event at least five (5) days prior to the Acceptance Time. Notwithstanding the foregoing, (A) no obligation of the Company or its Subsidiary under any certificate, document or instrument executed pursuant to the foregoing shall be effective until the Acceptance Time (or such later time set forth in such certificate, document or instrument), and neither the Company nor its Subsidiary nor any of its respective Representatives shall be required to take any action under any such certificate, document or instrument that is not contingent upon the consummation of the Offer (including the entry into any agreement that is effective before consummation of the Offer) or that would be effective prior thereto, (B) nothing herein shall require cooperation to the extent that such cooperation would interfere unreasonably with the business or operations of the Company or its Subsidiary and (C) neither the Company nor its Subsidiary shall be required to issue any offering or information document. The Company hereby consents to the use of the logos of the Company and its Subsidiaries in connection with the syndication or marketing of the Financing; provided that such logos are used in a ~~condition regarding Parent’s~~ manner that is not intended to harm or disparage the Company, its Subsidiaries or their marks; provided, further, that such logos are used solely in connection with a description of the Company, its business and products or the Transactions and shall not appear on the cover of any rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses, road show presentations and similar documents used in connection with the Financing. Neither the Company nor its Subsidiary shall be required to bear any cost or expense or to pay any commitment or other similar fee or make any other payment in connection with the Financing or any of the foregoing prior to the Acceptance Time. Parent shall, promptly upon request by the Company, reimburse the Company for all reasonable out-of-pocket costs incurred by the Company or its ~~Affiliates~~Subsidiary in connection with such cooperation and indemnify and hold harmless the Company, its Subsidiary and their respective Representatives from and against any and all costs or expenses (including reasonable attorneys’ ~~obtaining funds~~ fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of the arrangement of the Financing (including any action taken in accordance with this Section 5.13(c)) and any information utilized in connection therewith (other than historical information and other information relating to ~~consummate~~ the ~~Merger and~~ Company or its Subsidiary provided by the ~~transactions contemplated~~ Company in writing specifically for use in the Financing offering documents). Parent shall, promptly upon request by the Company, reimburse the Company for all reasonable out-of-pocket costs incurred by the Company or its Subsidiary in connection with this ~~Agreement~~Section 5.13(c).

Appears in 2 contracts

Sources: Agreement and Plan of Merger (Gilead Sciences Inc), Merger Agreement (Pharmasset Inc)

Financing. (a) ~~Subject to the terms and conditions of this Agreement, Parent~~ The Company shall use its reasonable best efforts to ~~take~~ensure that as of the Closing Date, the Company has the funds necessary to consummate the transactions contemplated by the definition of the term Financing, and shall not, and shall not permit any of its Subsidiaries to, take or agree to take any action that is reasonably likely to prevent or in any material respect impair its ability to complete, or ~~cause~~ delay the Financing. (b) In the event that all conditions to ~~be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain~~ the ~~Debt Financing on the terms and conditions described in the Debt~~ Commitment Letter ~~pursuant to~~ have been satisfied (or would be satisfied simultaneously with the ~~terms thereof (including any “market flex” provisions) including using~~ Closing), the Company shall use its reasonable best efforts to ~~seek~~ cause the Lender to ~~enforce~~ fund thereunder (including, taking enforcement action to cause the Lender to provide such financing). The Company shall not agree to or permit any amendment, supplement or other modification of, or waive any of its rights ~~under~~ under, the ~~Debt~~ Commitment Letter or any other agreements related to the Financing, in ~~the event of a breach thereof by the financing provider(s) thereunder. Parent shall not~~each case, without ~~the Company~~BPW’s prior written consent, ~~permit any amendment~~except amendments, ~~supplement, replacement~~ supplements or ~~modification~~ other modifications thereof to ~~be made to, or any waiver~~ provide for the assignment of ~~any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount~~ a portion of the ~~cash proceeds from~~ Financing to additional agents or arrangers and the ~~Debt Financing~~ granting to such persons of approval rights as are customarily granted to additional agents or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, ~~bookrunners~~which amendments, ~~syndication agents~~ supplements or ~~similar entities so long as such action~~ other modifications would not reasonably be expected to prevent, materially impede or materially delay the consummation of the Financing or ~~prevent~~ the ~~Closing). Parent shall promptly deliver to the Company true~~transactions contemplated by this Agreement; provided, ~~complete and correct copies of~~ that upon any such amendment, ~~modification~~ supplement or ~~replacement. (b) Parent shall~~modification, ~~and~~ the Company shall ~~cause its Affiliates and Representatives to~~provide a copy thereof to BPW. Notwithstanding anything herein to the contrary, ~~use its reasonable best efforts (A)~~ the Company shall be permitted to ~~maintain in effect~~ replace the ~~Debt~~ Commitment Letter with an Alternative Financing Arrangement (~~provided~~ as defined in the Commitment Letter) for not less than the full principal amount of the financing contemplated by the Commitment Letter; provided, that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions ~~that~~ (including with respect to conditionality and amounts available to be borrowed by the Company on the Closing Date) are ~~not materially~~ no less favorable to ~~Parent~~ the Company than those contained in the ~~Debt~~ Commitment ~~Letter, (C) to satisfy on a timely basis~~ Letter (or ~~obtain~~ as otherwise agreed to in writing by BPW). (c) The Company shall give BPW prompt written notice of any material breach by any party to the ~~waiver of), and~~ Commitment Letter (or any other commitments or definitive documentation in ~~a manner that will not impede the ability~~ respect of the ~~parties to consummate~~ Financing) of which the ~~Merger, all conditions to receipt~~ Company becomes aware or any termination of the ~~full amount~~ Commitment Letter (or any other commitments or definitive documentation in respect of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective TimeFinancing). In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent The Company shall keep ~~the Company~~ BPW informed on a current basis ~~and~~ in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.

Appears in 2 contracts

Sources: Merger Agreement (BPW Acquisition Corp.), Merger Agreement (Talbots Inc)

Financing. (a) ~~Subject to the terms and conditions of this Agreement,~~ Parent shall use its commercially reasonable ~~best~~ efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things ~~necessary,~~ necessary or advisable ~~or proper~~ to ~~arrange and obtain~~ consummate on the Closing Date the Debt Financing on the terms and ~~conditions described in the Debt Commitment Letter pursuant~~ subject to the ~~terms thereof~~ conditions (including ~~any~~ the “market flex” provisions) set forth in the Debt Commitment Letter, including using its commercially reasonable ~~best~~ efforts ~~to seek to enforce its rights under~~ to: (i) maintain in full force and effect the Debt Commitment Letter in accordance with the ~~event of a breach~~ terms and subject to the conditions thereof by until the ~~financing provider(s) thereunder. Parent shall not,~~ Merger is consummated or this Agreement is terminated in accordance with its terms; and without the ~~Company’s~~ prior written ~~consent~~consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed) not permit any ~~amendment, supplement, replacement~~ amendment or modification to be made to, or not consent to any waiver of any provision or remedy under, and not replace, the Debt Commitment ~~Letter~~ Letter, in any case if such amendment, ~~supplement~~modification, ~~replacement, modification~~ waiver or ~~waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B)~~ replacement imposes new or additional conditions ~~to the initial funding~~ or otherwise ~~expands~~ materially amends or modifies any of the conditions to the ~~receipt~~ funding of the Debt ~~Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter~~ Financing in a manner that ~~would~~ could reasonably be expected to ~~(x)~~ delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (Closing; provided, ~~that~~ that, Parent may ~~amend~~ amend, modify or supplement the Debt Commitment Letter to (x) add ~~or replace~~ lenders, lead arrangers, bookrunners, syndication agents or similar entities ~~so long~~ who have not executed the Debt Commitment Letter as ~~such action would not reasonably be expected to delay or prevent~~ of the ~~Closing).~~ date hereof, (y) effectuate any “market flex” provisions contained therein; provided further, however, that, Parent shall ~~promptly deliver~~ disclose to the Company ~~true~~its intention to enter into any such amendment, ~~complete~~ modification, waiver or replacement of the Debt Commitment Letter prior to the effectiveness of such amendment, modification, waiver or replacement and ~~correct~~ shall promptly furnish to the Company copies of executed versions of any such amendment, ~~modification~~ modification, waiver or replacement.; (bii) ~~Parent shall~~satisfy on a timely basis all conditions to the Debt Financing that are within its control; (iii) negotiate, execute and ~~shall cause its Affiliates~~ deliver Debt Financing Documents that reflect and ~~Representatives to, use its reasonable best efforts (A) to maintain~~ are consistent with the terms contained in ~~effect~~ the Debt Commitment Letter (~~provided that~~ including any “market flex” provisions related thereto) as the ~~Debt Commitment Letter~~ same may be amended, ~~supplemented, replaced,~~ modified or ~~waived~~ supplemented as ~~provided in~~ permitted by this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), Agreement; and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions ~~precedent expressly~~ set forth in ~~the Debt Commitment Letter~~ Section 6.01 and ‎Section 6.02 have been satisfied or waived or, upon funding of the Debt Financing ~~will be,~~ would be satisfied, ~~Parent and Sub shall use their reasonable best efforts to enforce their rights under, and~~ cause the ~~Financing Sources, lenders and the other persons providing or committing to provide~~ full amount of the Debt Financing to ~~comply with their obligations under~~ be funded as contemplated by the Debt Commitment Letter ~~and definitive financing~~ at the Closing. (b) Parent shall provide to the Company, upon request, copies of all executed agreements and other documents relating to ~~fund on or before the Effective Time~~ the Debt ~~Financing. Parent shall~~ Financing and keep the Company informed on a reasonably current basis and in reasonable detail of all material developments with respect to the status of its efforts to arrange the Debt Financing. (c) Without the prior written consent of the Company (not to be unreasonably withheld, ~~and~~conditioned or delayed), neither Parent nor any of its affiliates shall take any action that could reasonably be expected to materially delay or prevent the consummation of the Debt Financing. (d) If any Financing Failure Event occurs, Parent shall (unless Parent determines that the affected portion of the Debt Financing is not reasonably required to consummate the Merger) promptly ~~following request~~ notify the Company thereof and use its commercially reasonable efforts to obtain, as promptly as practicable, on terms reasonably as favorable to Parent (as reasonably determined by Parent) as the ~~Company~~terms of the Debt Commitment Letter, ~~provide~~ alternative debt financing (“Debt Replacement Financing”) in an amount that would, together with other funds readily available to Parent, be sufficient to pay the aggregate Merger Consideration on the Closing Date. Parent shall deliver to the Company copies of all executed contracts or other arrangements pursuant to which any alternative source shall have committed to provide any portion of the Debt Replacement Financing ~~Agreements~~(provided that any fee letters in connection therewith may be redacted with respect to interest rates, fee amounts, pricing caps and other similar economic terms (including any “market flex” provisions). Any Debt Replacement Financing shall be subject to the same obligations as set forth in this Section 5.19 with respect to the Debt Financing. (ce) ~~Without limiting the foregoing, Parent agrees to notify~~ All non-public or otherwise confidential information regarding the Company ~~promptly~~and its Subsidiaries obtained by Parent or its representatives shall be kept confidential in accordance with the Confidentiality Agreement, except that Parent shall be permitted to disclose such information to potential investors and lenders in connection with the Debt Financing subject to such investors and lenders entering into customary confidentiality undertakings with respect to such information. (f) Notwithstanding anything contained in this Section 5.19 or anything else in this Agreement to the contrary, in no event shall the commercially reasonable efforts of Parent be deemed or construed to require Parent to, and ~~in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason~~Parent shall not be required to, (iix) ~~Parent becomes aware~~ incur or pay any fees to obtain a waiver or amendment of any ~~breach or default (A) by any Financing Source party to~~ term of the Debt Commitment Letter or any Debt Financing ~~Agreement or~~ Documents in excess (~~B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if,~~ in the ~~case~~ aggregate) of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing those contemplated by the Debt Commitment Letter on as of the date hereof, (y) agree to conditionality or economic terms ~~set forth therein.~~ of the Debt Financing that are less favorable to Parent ~~shall promptly provide any information reasonably requested~~ than those contemplated by the ~~Company relating to~~ Debt Commitment Letter (including any ~~circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent~~ market flex provisions therein) as of the ~~Company~~date hereof, ~~take any action~~ or ~~enter into any transaction that would reasonably be expected~~ (z) obtain or seek equity financing to ~~materially impair, delay~~ supplement or ~~prevent consummation of~~ replace all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.

Appears in 2 contracts

Sources: Merger Agreement (SPAR Group, Inc.), Merger Agreement (SPAR Group, Inc.)

Financing. ~~(a) Subject~~ Parent will not agree to ~~the terms and conditions of this Agreement, Parent shall use its reasonable best efforts to take~~any amendment or modification to, or ~~cause to be taken~~grant any waiver of, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any ~~“market flex” provisions) including using its reasonable best efforts to seek to enforce its rights~~ provision under the Debt Commitment Letter ~~in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not,~~ without the ~~Company’s~~ prior written ~~consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver~~ consent of ~~any provision under,~~ the ~~Debt Commitment Letter~~ Company if such amendment, ~~supplement, replacement,~~ modification or waiver would (Ai) ~~reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or~~ impose additional ~~conditions to the initial funding~~ conditions, or otherwise ~~expands~~ amend or modify any of the conditions in a manner that is adverse in any material respect to Parent or the Company, to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing ~~(or satisfaction of the conditions to the Debt Financing)~~ on the Closing Date, (ii) delay the timing of the funding of the Debt Financing or prevent or make less likely to occur, the funding of the commitments thereunder, on the Closing Date, (iii) reduce the aggregate cash amount of the funding commitments thereunder, or (yiv) adversely ~~affect~~ impact the ability of Parent or Merger Sub to enforce its rights against any other ~~parties~~ party to ~~the~~ any Debt Commitment Letter or the definitive ~~agreements~~ documentation with respect thereto (~~provided~~the foregoing clauses (i) through (iv), ~~that~~ the “Prohibited Changes”); provided that, without the consent of the Company, Parent may amend the Debt Commitment Letter to add ~~or replace~~ additional lenders, ~~lead~~ arrangers, ~~bookrunners, syndication~~ bookrunners and agents or ~~similar entities~~ to implement or exercise any of the “market flex” provisions contained in the Fee Letter so long as such ~~action~~ amendment would not reasonably be expected to impose additional conditions on the obligations of the Financing Sources or delay ~~or prevent~~ the Closing). Parent ~~shall promptly deliver~~ will not permit or consent to any waiver of any remedy under the Debt Commitment Letter or any early termination of the Debt Commitment Letter. In the event that all conditions contained in the Debt Commitment Letter have been satisfied, Parent will use reasonable best efforts to cause the Financing Sources to comply with their funding obligations thereunder. Notwithstanding the foregoing or any provision of this Agreement to the ~~Company true~~contrary, ~~complete~~ Parent will be entitled to replace the Debt Commitment Letter by entering into definitive documentation with respect to the Debt Financing on or prior to the Closing so long as such definitive documentation is on terms and ~~correct copies of any such amendment, modification or replacement. (b)~~ conditions consistent with the Debt Commitment Letter and would not result in Prohibited Changes. Parent ~~shall, and shall cause its Affiliates and Representatives to,~~ will use its reasonable best efforts to (A) to maintain in effect the Debt Commitment Letter (~~provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided~~ including any definitive documentation entered into in ~~this Section 6.13~~connection therewith), (B) satisfy on a timely basis all conditions in the Debt Commitment Letter (including any definitive documentation entered into in connection therewith) applicable to ~~negotiate~~ Parent and ~~enter into~~ Merger Sub to obtaining the Debt Financing as promptly as practicable (other than any condition where the failure to be so satisfied is a direct result of the Company’s failure to furnish information to Parent or otherwise comply with its obligations under this Agreement), (C) promptly upon execution thereof, at the request of the Company, provide to the Company complete executed copies of any definitive ~~agreements~~ documentation with respect to the Debt ~~Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter~~Financing, (CD) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, and (DE) ~~to comply with~~ fully enforce the counterparties’ obligations and its ~~obligations~~ rights under the Debt Commitment ~~Letter~~Letter (including any definitive documentation entered into in connection therewith), ~~and (E)~~ including by suit or other appropriate proceeding, to ~~consummate~~ cause the lenders under the Debt Financing ~~at or prior~~ to ~~the Effective Time. In the event that~~ fund in accordance with their respective commitments if all conditions ~~precedent expressly set forth~~ to funding the Debt Financing in the Debt Commitment Letter (including any definitive documentation entered into in connection therewith) have been orsatisfied or waived. Parent will keep the Company reasonably informed on a timely basis of the status of Parent’s and Merger Sub’s efforts to arrange the Debt Financing and to satisfy the conditions thereof, including, upon ~~funding~~ Company’s reasonable request, (1) advising and updating the Company, in a reasonable level of detail, with respect to status, proposed Closing Date and material terms of the material definitive documentation for the Debt Financing and (2) providing copies of the current drafts of all such definitive documentation. If any portion of the Debt Financing ~~will be~~otherwise becomes unavailable, ~~satisfied~~and such portion is reasonably required to fund the aggregate Merger Consideration and all fees, expenses and other amounts contemplated to be paid by Parent, Merger Sub or Surviving Corporation pursuant to this Agreement, Parent and Merger Sub will promptly arrange and obtain in replacement thereof alternative financing from alternative sources in an amount sufficient to consummate the Merger. Notwithstanding anything in this Section 5.3 to the contrary, solely to the extent Parent shall ~~use their reasonable best efforts~~ receive prior to ~~enforce their rights under~~the Closing Date sufficient cash proceeds that are available to consummate the Merger on the Closing Date, ~~and cause~~ Parent will have the ~~Financing Sources~~right to substitute the proceeds of consummated equity, ~~lenders and~~ equity linked or convertible, exchangeable or debt issuances or other incurrences of debt for all or any portion of the ~~other persons providing or committing~~ amount contemplated to ~~provide~~ be provided by the Debt Financing ~~to comply with their obligations under~~ contemplated by the Debt Commitment Letter and ~~definitive financing agreements and~~ may reduce the amount of the commitments thereunder. Any reference in this Agreement to ~~fund on or before~~ the ~~Effective Time the~~ “Debt Financing” will include any such alternative financing or such replacement financing, any reference in this Agreement to the “Debt Commitment Letter” will include the commitment letter and the corresponding fee letter with respect to any such alternative financing or such replacement financing, and any reference in this Agreement to the “Financing Sources” will include the financing institutions contemplated to provide any such alternative financing or replacement financing. Parent ~~shall~~ will keep the Company informed on a ~~current~~ prompt basis ~~and~~ in reasonable detail of the status of its efforts to arrange the Debt ~~Financing~~Financing and will, ~~and~~upon the Company’s reasonable request, promptly ~~following request by the Company,~~ provide to the Company copies of all ~~executed Debt Financing Agreements. (c) Without limiting the foregoing~~alternative or replacement financing commitments and related fee letters, ~~Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior~~ redacted to the ~~Closing Date (i)~~ same extent as copies of the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received delivered by Parent ~~after the date hereof and~~ on or prior to the ~~Closing from consummated offerings or other incurrences of debt (~~date hereof. Parent acknowledges and agrees that its obligations hereunder, including ~~notes) by Parent for all or any portion of~~ its obligations to consummate the ~~Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does~~ Transactions, are not ~~result in a breach or default under~~subject to, or ~~violation of~~conditioned on, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount receipt of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s Transactions or any ~~of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement~~other financing.

Appears in 2 contracts

Sources: Merger Agreement (Westlake Chemical Corp), Merger Agreement (Axiall Corp/De/)

Financing. ~~(a) Subject to the terms and conditions of this Agreement, Parent~~ 5.14.1. Buyer shall use its reasonable best efforts to take, or cause to be taken, all actions and to use its reasonable best efforts to do, or cause to be done, all things necessary, proper or advisable ~~or proper~~ to ~~arrange and~~ obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter ~~pursuant to~~ (taking into account the ~~terms thereof (including any~~ relevant “market ~~flex” provisions)~~ flex “ provisions of the Fee Letter (as defined in the Debt Commitment Letter)), including using its reasonable best efforts to ~~seek to enforce its rights under~~ (a) maintain in effect the Debt Commitment Letter in accordance with its terms, (b) satisfy all conditions and covenants in the ~~event of~~ Debt Commitment Letter that are a ~~breach thereof~~ condition to the funding thereunder, in each case, that are within its control, (c) enter into definitive agreements with respect thereto on the terms and conditions contemplated by the ~~financing provider(s~~Debt Commitment Letter (taking into account any “market flex “ provisions set forth in the Fee Letter), and (d) ~~thereunder~~consummate the Debt Financing at or prior to Closing on substantially the terms and conditions of the Debt Commitment Letter. 5.14.2. ~~Parent~~ Buyer shall ~~not, without the Company’s prior written consent,~~ not permit any ~~amendment, supplement, replacement~~ amendment or modification to be made to, or any waiver of any provision or remedy under, the Debt Commitment Letter or the definitive agreements with respect thereto, if such amendment, ~~supplement, replacement,~~ modification or waiver would (Aa) ~~reduces~~ reduce the aggregate principal amount of the ~~cash proceeds from the~~ Debt Financing (unless, if required to effect the Closing on the terms set forth herein, Buyer agrees to use its cash on hand) or (Bb) ~~imposes~~ impose new or additional conditions ~~to the initial funding~~ or other terms or otherwise ~~expands~~ materially expand, amend or modify any of the conditions to the receipt of the Debt ~~Financing,~~ Financing or ~~otherwise expands, amends or modifies any~~ other ~~provision of the Debt Commitment Letter~~ terms in a manner that would reasonably be expected to (xi) ~~delay~~ materially delay, impair or prevent the consummation of the transactions contemplated by this Agreement, (ii) make, in any material respect, the timely funding ~~in full~~ of the Debt Financing (or satisfaction of the conditions to obtaining the Debt ~~Financing) on the Closing Date,~~ Financing materially less likely to occur or (yiii) adversely ~~affect~~ impact, in any material respect, the ability of ~~Parent~~ Buyer to enforce its rights against other parties to the Debt Commitment Letter or to draw upon and consummate the ~~definitive agreements with respect thereto (provided, that Parent may amend~~ Debt Financing. 5.14.3. If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver Letters (other than due to the ~~Company true, complete and correct copies~~ failure of a condition to the consummation of the Debt Financing resulting from a breach of any ~~such amendment~~representation, ~~modification~~ warranty, covenant or ~~replacement. (b) Parent~~ agreement of Company or Holder Representative set forth in this Agreement), Buyer shall, ~~and shall cause its Affiliates and Representatives to~~as promptly as practicable following the occurrence of such event, use its reasonable best efforts ~~(A)~~ to ~~maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate~~ arrange and ~~enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”)~~ obtain from alternative sources alternative financing on ~~the~~ terms and conditions that are not materially less favorable to ~~Parent than those contained in~~ Buyer (taking into account the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions relevant “market flex” provisions set forth in the ~~Debt Commitment~~ Fee Letter), ~~to consummate the Debt Financing at or prior to the Closing~~taken as a whole, ~~(D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly~~ than those set forth in the Debt Commitment Letter ~~have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts~~ in an amount at least equal to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or such unavailable portion thereof (~~iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of~~ the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“~~Alternative~~ Alternate Debt Financing”)~~. True~~, ~~correct~~ and ~~complete copies of each alternative financing~~ to obtain a new commitment in letter with respect of to such ~~Alternative~~ Alternate Debt Financing (~~each, a~~ the “New Debt Commitment Letter”), ~~together with all related fee letters and associated engagement letters (solely in the case~~ a copy of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will which shall be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (ia) any reference in this Agreement to the “Debt ~~Financing”~~ Financing shall ~~include~~ mean the debt financing contemplated by the Debt Commitment Letter as modified pursuant to ~~clause~~ subsection (iib) below, and (iib) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter ~~which is~~ or Letters that are not superseded by a New Debt Commitment Letter at the time in question and ~~each~~ the New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter or Letters to the extent then in effect. 5.14.4. Upon written request by the Company from time to time, Buyer shall apprise the Company on a reasonably current basis and in reasonable detail with respect to all material activity concerning the status of its efforts to arrange the Debt Financing. Without limiting the foregoing, Buyer shall notify the Company promptly, and in any event within two (e2) On Business Days after it becomes aware thereof, (a) of any breach or default by any party to any Debt Commitment Letter or definitive agreements with respect thereto, (b) of the receipt by Buyer of any written notice or other communication (other than negotiations of the definitive agreements with respect to the Debt Financing) from any Debt Financing Source with respect to any breach, default, termination or repudiation by any party to any Debt Commitment Letter or any definitive agreement related thereto of any provision of any Debt Commitment Letter or any definitive agreements with respect thereto or (c) if for any reason Buyer no longer believes in good faith that it will be able to obtain all or any portion of the Debt Financing. Buyer shall not enter into any agreement or undertaking that would reasonably be expected to materially impair, delay or prevent the consummation of the Financing. 5.14.5. The Company, the Company Subsidiaries and their respective representatives shall, at Buyer’s expense, use reasonable best efforts to cooperate in connection with the arranging, obtaining, syndication and consummation of any Debt Financing (including any Alternate Debt Financing) being arranged by Buyer or its Affiliates in connection herewith as may be reasonably requested by Buyer or the Debt Financing Sources (provided, that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and the Company Subsidiaries); including reasonable best efforts with respect to (i) promptly providing to Buyer and the Debt Financing Sources the Required Bank Information and such other reasonably available financial and other information regarding the Company and any of the Company Subsidiaries as required under the Debt Commitment Letter or otherwise reasonably requested by the Buyer, any Debt Financing Source or prospective lender in order to syndicate or consummate the Debt Financing and delivering customary authorization letters in connection with the information memoranda, investor presentations, rating agency memoranda and similar documents, including, if the Closing has not occurred prior to March 30, 2016, audited consolidated financial statements of the Company and the Company Subsidiaries for the year ending December 31, 2015, (ii) furnishing at least five (5) Business Days prior to the Closing Date all required documentation and other information required by applicable governmental authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the U.S.A. Patriot Act of 2011, but in each case solely relating to the Company and the Company Subsidiaries, as applicable, (iii) reasonably facilitating the pledging of collateral on the Closing Date with respect to any pledge or grant that becomes effective on or after the Closing Date, ~~Parent shall provide all funds required~~ (iv) reasonably assisting in obtaining any corporate credit and family ratings and ratings in respect of the Debt Financing from any rating agencies contemplated by the Debt Commitment Letter, (v) obtaining customary consents of accountants for the use of their audit reports in any materials relating to ~~effect~~ the ~~repayment~~ Debt Financing and (vi) obtaining lien releases at the expense of and as reasonably requested by the Buyer or any Debt Financing Source. The Company hereby consents to the use of all ~~indebtedness under~~ of its and the Company ~~Credit Agreement~~ Subsidiaries’ logos in ~~full in accordance~~ connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company ~~Credit Agreement~~or the Company Subsidiaries or the reputation or goodwill of the Company or any of the Company Subsidiaries. Notwithstanding any other provision set forth herein, ~~subject~~ the Company agrees that the Buyer may share non-public or confidential information regarding the Company and its business with the Debt Financing Sources, and that such Debt Financing Sources may share such information with potential financing sources in connection with any marketing efforts (including any syndication) in connection with the Debt Financing, provided that (i) the recipients of such information agree to ~~compliance with Section 6.14(a)(iii~~customary confidentiality arrangements and (ii) the Buyer will be responsible for any actions (or inactions) by such recipients that would be deemed a breach of the Confidentiality Agreement as if Buyer had so acted (or not acted). ~~(f) Notwithstanding anything to~~ 5.14.6. Buyer shall, promptly upon the ~~contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s~~ written request of the Company or the Holder Representative reimburse the Company or the Holder Representative for all reasonable and documented out-of-pocket third-party costs and expenses incurred by the Company or the Holder Representative or any of ~~its Affiliates’ obtaining funds~~ their representatives in connection with the cooperation provided for in Section 5.14.5 (such reimbursement to ~~consummate~~ be made promptly and in any event within three (3) Business Days of delivery of reasonably acceptable documentation evidencing such costs and expenses) and shall indemnify and hold harmless the ~~Merger~~ Company, the Holder Representative and their respective representatives from and against any and all Losses suffered or incurred by them in connection with the ~~transactions contemplated~~ arrangement of the Debt Financing and any information utilized in connection therewith (other than information provided by the Company, the Holder Representative or any of their respective representatives or to the extent such Losses result from the gross negligence or willful misconduct of any of the Company, the Company Subsidiaries, the Holder Representative or their respective representatives). Notwithstanding anything in this ~~Agreement~~Agreement to the contrary, the Company shall not be required to pay any commitment or similar fee or incur any other liability in connection with the Debt Financing prior to the Closing for which it is not reimbursed by Buyer.

Appears in 2 contracts

Sources: Merger Agreement, Merger Agreement (Select Medical Corp)

Financing. (a) ~~Subject to~~ Kimberly-Clark shall, and shall cause the ~~terms and conditions of this Agreement~~Kimberly-Clark Subsidiaries to, ~~Parent shall~~ use ~~its~~ their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable ~~or proper~~ to ~~arrange and~~ obtain the ~~Debt~~ Committed Financing on the terms and conditions ~~described~~ set forth in the Debt Commitment Letter, including using their respective reasonable best efforts to (i) maintain in effect the Debt Commitment Letter ~~pursuant~~ until the Transactions are consummated and (ii) unless Kimberly-Clark shall have reduced the commitments under the Debt Commitment Letter to zero in accordance with the immediately preceding clause (i), (A) negotiate definitive agreements with respect to the facilities contemplated by the Debt Commitment Letter on the terms ~~thereof~~ and conditions set forth therein (including any “market flex” ~~provisions~~provisions applicable to the Financing) ~~including using~~ (or on terms that will not materially delay or prevent the Closing or make the funding with respect to the Committed Financing less likely to occur), (B) satisfy or cause to be waived on a timely basis all conditions applicable to Kimberly-Clark set forth in the Debt Commitment Letter or such definitive agreements that are within its ~~reasonable best efforts to seek to~~ control, (C) upon the satisfaction or waiver of such conditions, consummate the Committed Financing on the Closing Date and (D) enforce its rights under the Debt Commitment Letter ~~in the event of a breach thereof by the financing provider(s) thereunder~~and such definitive agreements. ~~Parent~~ Kimberly-Clark shall not, without the ~~Company’s~~ prior written ~~consent~~consent of Kenvue, ~~permit~~ amend, modify, supplement, waive (or otherwise grant consent under) the Debt Commitment Letter or any definitive agreements in respect of the Committed Financing or replace all or any portion of the commitments in respect of the Financing, to the extent such amendment, modification, supplement, replacement or ~~modification to be made to, or any~~ waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (xw) ~~delay~~ reduce the amount of the Committed Financing to an amount that would result in Kimberly-Clark having insufficient funds, when added with cash and marketable securities of Kimberly-Clark and any then-available Committed Financing, to pay the Required Amounts, (x)(i) impose new or additional conditions precedent to the initial funding of the Committed Financing other than as contemplated by the Debt Commitment Letter (as in effect on the date of this Agreement) or (ii) otherwise modify the conditions precedent to the initial funding of the Committed Financing (as in effect on the date of this Agreement) in a manner reasonably expected to delay, prevent or impede the funding ~~in full~~ of the ~~Debt~~ Committed Financing (or satisfaction of the conditions precedent to the ~~Debt~~ Committed Financing) on the Closing ~~Date~~Date or make such funding materially less likely to occur, (y) delay in any material respect the Closing Date or (yz) adversely affect the ability of ~~Parent~~ Kimberly-Clark to enforce its rights against the other parties to the Debt Commitment Letter or (the ~~definitive agreements with respect thereto~~ effect described in clause (w) through (z), a “Prohibited Modification”); provided, ~~that Parent~~ however, Kimberly-Clark may ~~amend~~ amend, modify, supplement or waive any provision of the Debt Commitment Letter to (A) add ~~or replace~~ lenders, lead arrangers, bookrunners, syndication agents or similar entities ~~so long as such action would~~ that have not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement. (b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect executed the Debt Commitment Letter ~~(provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived~~ as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the ~~parties to consummate the Merger, all conditions to receipt~~ date of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement ifthis Agreement, in ~~the case of this clause (B)~~each case, such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing as contemplated by the Debt Commitment Letter on the ~~terms set forth therein. Parent shall promptly provide any information reasonably requested by~~ date of this Agreement, (B) reduce or terminate the ~~Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent~~ commitments thereunder as a result of the ~~Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent~~ consummation of ~~all or~~ an alternative financing which generates, taken together with other sources of funds immediately available to Kimberly-Clark, the Required Amounts, and (C) in any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided manner that ~~(v) such offering or other incurrence of debt~~ does not result in a ~~breach~~ Prohibited Modification. As soon as reasonably practicable, Kimberly-Clark will provide Kenvue with true and complete executed copies of any material amendment or ~~default under~~supplement to, or ~~violation of~~modification or replacement of or waiver under, the Debt Commitment ~~Letter~~Letter (subject, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of ~~the~~ any fee ~~letter~~letters, ~~with only the~~ to redaction solely of fee ~~amounts, pricing, “market flex” provisions~~ and other economic ~~terms~~ provisions that ~~do not adversely affect~~ are customarily redacted in connection with transactions of this type) made in compliance with this Section 7.07(a). Upon any such amendment, modification, supplement, replacement, waiver or consummation of an alternative financing, (A) the ~~enforceability, availability or conditionality of, or the aggregate amount~~ definitions of ~~proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New~~ “Debt Commitment ~~Letter is obtained~~Letter” and “Financing” set forth in this Agreement shall be deemed to have been modified as appropriate to reflect such amendment, modification, supplement, replacement, waiver or alternative financing and (iB) any reference in this Agreement to the “~~Debt~~ Committed Financing” shall ~~include the debt~~ mean financing contemplated by the Debt Commitment Letter as modified pursuant to clause (iiA) ~~below~~above. (b) If the Committed Financing in an aggregate principal amount (together with cash and marketable securities on hand or other sources of funds immediately available to Kimberly-Clark) at least equal to Required Amounts becomes unavailable on the terms and conditions contemplated by the Debt Commitment Letter, and such unavailable amount is necessary to pay the Required Amounts (such event, an “Original Financing Failure”), Kimberly-Clark shall promptly notify Kenvue in writing of the Original Financing Failure and Kimberly-Clark shall use its reasonable best efforts to obtain, as promptly as reasonably practicable, alternative financing from alternative sources that does not include conditions to obtaining the financing that are more onerous to Kimberly-Clark, taken as a whole, than those contained in the Debt Commitment Letter and in an amount at least equal to the aggregate principal amount of the Committed Financing or such unavailable portion thereof, as the case may be (the “Alternate Financing”) that is necessary to pay the Required Amounts, and to obtain new financing commitment letter(s) with respect to such Alternate Financing (the “New Commitment Letter(s)”), which shall replace the existing Debt Commitment Letter; provided that any such Alternate Financing shall not obligate Kenvue prior to the Closing as a surety, guarantor or indemnitor or to extend credit to any Person. Kimberly-Clark shall promptly provide true and complete copies of such New Commitment Letter(s) (including all attachments thereto) and all related fee letters (subject, in the case of any fee letters, to redaction solely of fee and other economic provisions that are customarily redacted in connection with transactions of this type) to Kenvue. In the event New Commitment Letter(s) are obtained, (iii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the ~~Debt~~ New Commitment ~~Letter which is not superseded by a New Debt Commitment Letter at the time in question~~ Letter(s) and ~~each New Debt Commitment Letter to the extent then in effect,~~ related fee letters and (~~iii~~ii) any reference in this Agreement to the “~~fee letter~~Committed Financing” shall ~~be deemed~~ include the financing contemplated by the New Commitment Letter(s). (c) Kimberly-Clark shall keep Kenvue informed on a reasonably current basis and in reasonable detail of the status of its efforts to ~~include~~ arrange the Financing, including, for the avoidance of doubt, notifying Kenvue of any ~~fee letter relating~~ reduction in the aggregate principal amount of the Committed Financing in connection with Kimberly-Clark obtaining other Financing in lieu thereof as contemplated by the Debt Commitment Letter and permitted hereby and thereby. Kimberly-Clark shall give Kenvue prompt notice of (i) any material breach or material default by any party to the Debt Commitment Letter, or any definitive agreements related to the Committed Financing, in each case, of which Kimberly-Clark becomes aware, (ii) the receipt of any written notice or other written communication, in each case received from any Financing Source with respect to any (x) material breach of Kimberly-Clark’s obligations under the Debt Commitment Letter or definitive agreements related to the Committed Financing, or default, termination or repudiation by any party to the Debt Commitment Letter ~~that is not superseded by~~ or definitive agreements related to the Committed Financing or (y) material dispute between or among any ~~New~~ parties to the Debt Commitment Letter or definitive agreements related to the Committed Financing or any provisions of the Debt Commitment Letter, in each case with respect to the obligation to fund the amount of the Committed Financing to be funded at Closing and (iii) if for any reason Kimberly-Clark has determined in good faith that it will not be able to obtain all or any portion of the ~~time in question and each New~~ Committed Financing on the terms contemplated by the Debt Commitment Letter in an amount sufficient, when added with cash and marketable securities of Kimberly-Clark, to pay the Required Amounts. Notwithstanding the foregoing, in no event shall Kimberly-Clark be required to provide access to or disclose information that would jeopardize any attorney-client privilege of, or conflict with any confidentiality requirements applicable to, to Kimberly-Clark or any of its Subsidiaries (as reasonably determined in good faith by Kimberly-Clark); provided that Kimberly-Clark and the Kimberly-Clark Subsidiaries shall use reasonable best efforts to provide an alternative means of disclosing or providing such information, and in the case of any confidentiality obligation, Kimberly-Clark shall, to the extent ~~then in effect~~permitted by such confidentiality obligations, notify Kenvue if any such information that Kenvue has specifically identified and requested is being withheld as a result of any such obligation of confidentiality. (ed) On From and after the date of this Agreement, and through the earlier of the Closing ~~Date, Parent shall provide all funds required to effect~~ and the ~~repayment of all indebtedness under the Company Credit~~ date on which this Agreement ~~in full~~ is terminated in accordance with Article IX, Kenvue shall, and Kenvue shall cause each Kenvue Subsidiary to, and Kenvue and each Kenvue Subsidiary shall use its reasonable best efforts to cause the ~~Company~~ appropriate Representatives of Kenvue and each Kenvue Subsidiary to (or, with respect to clauses (iv) and (v), to take or cause to be taken (without any “reasonable best efforts” or other qualifier)), provide such customary cooperation as is reasonably requested by Kimberly-Clark, any Kimberly-Clark Subsidiary or any of its or their respective Representatives in connection with the arrangement and consummation of the Committed Financing or any other Financing, including using reasonable best efforts to (i) cause appropriate senior management of Kenvue and any Kenvue Subsidiary reasonably available, upon reasonable advance notice and during normal business hours, to participate in a reasonable number of meetings and calls, diligence sessions, drafting sessions, road shows, sessions with rating agencies in connection with the Financing, (ii) assist with the preparation of (x) materials for rating agency presentations, lender presentations and investor and road show presentations, (y) bank information memoranda, registration statements, prospectuses, offering memoranda and private placement memoranda and (z) similar documents, in each case, required or customary in connection with the Financing or otherwise reasonably requested by Kimberly-Clark, (iii) provide customary authorization and representation letters to the Financing Sources authorizing the distribution of information to prospective lenders, (iv) provide the lead arrangers, agents, underwriters and initial purchasers for, and prospective lenders of, the Financing, at least three Business Days prior to the closing date of the applicable Financing (to the extent requested at least ten Business Days prior to the closing date of the applicable Financing) with all documentation and other information required with respect to Kenvue and the Kenvue Subsidiaries in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, Title III of Pub. L. 107-56 and 31 C.F.R. § 1010.230, the Office of Foreign Assets Control and the Foreign Corrupt Practices Act, (v) provide, as promptly as reasonably practicable, the Required Financial Information, (vi) cause its independent accountants to provide assistance and cooperation with any offering of securities, including (x) providing any necessary written consents to use their audit reports relating to Kenvue and the Kenvue Subsidiaries and to be named as an “Expert” in any document related to any Financing, (y) providing any customary “comfort” letters (including customary “negative assurance” comfort) and (z) participating in accounting due diligence sessions, (vii) cooperate with the Financing Related Parties’ due diligence, to the extent customary or reasonable, (viii) provide, as promptly as reasonably practicable, all financial and other customary financial information regarding Kenvue and the Kenvue Subsidiaries as may be reasonably necessary for Kimberly-Clark to prepare pro forma financial statements required or desirable for a public offering of debt or equity or equity-linked securities or required by Regulation S-K and Regulation S-X, including in connection with the Financing (it being understood that Kimberly-Clark shall be solely responsible for the preparation of any pro forma financial information or pro forma financial statements), (ix) cooperate with the preparation and delivery of customary definitive financing documents, including, in each case, the schedules thereto, or documents contemplated by the Financing, (x) cooperate with Kimberly-Clark and the Kimberly-Clark Subsidiaries in connection with any replacement letters of credit issued pursuant to the Kenvue Credit ~~Agreement~~Facility, (xi) facilitate discussions with Kenvue’s existing lender and banking relationships and (xii) provide customary guarantee documentation at the Closing of the Financing, as required by the Financing Related Parties. (i) The cooperation set forth in Sections 7.07(d), (j) and (k) shall not be required to the extent that it would (A) require Kenvue to take any action that, in the good faith judgment of Kenvue, unreasonably interferes with the ongoing business or operations of Kenvue and/or Kenvue Subsidiaries, (B) require Kenvue or any Kenvue Subsidiary to incur (1) any financing fee or (2) any other fee, expense or other liability that is not, subject to ~~compliance with Section 6.14(a)(iii~~the limitations contained therein , subject to reimbursement or is not otherwise indemnified by Kimberly-Clark, (C) cause any representation or warranty in this Agreement to be breached (unless waived in advance by Kimberly-Clark), (D) cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement, (E) be reasonably expected to cause any director, officer or employee of Kenvue or any Kenvue Subsidiary to incur any personal liability or (F) cause any breach of any applicable Law or any material Contract to which Kenvue or any Kenvue Subsidiary is a party and (ii) Kenvue and the Kenvue Subsidiaries shall not be required to (w) enter into, execute, or approve any agreement or other documentation prior to the Closing or agree to any change or modification of any existing agreement or other documentation that would, in each case, be effective prior to the Closing (other than the execution of customary authorization and representation letters) (x) deliver any certificate or take any other action that would reasonably be expected to result in personal liability to a director, officer or other personnel, (y) deliver any legal opinion or (z) otherwise provide any information or take any action to the extent it could result in (I) a loss or waiver of any privilege or (II) the disclosure of any trade secrets, customer-specific data or competitively sensitive information not otherwise required to be provided under this Agreement or the violation of any confidentiality obligation; provided that Kenvue and the Kenvue Subsidiaries shall use reasonable best efforts to provide an alternative means of disclosing or providing such information, and in the case of any confidentiality obligation, Kenvue shall, to the extent permitted by such confidentiality obligations, notify Kimberly-Clark if any such information that Kimberly-Clark has specifically identified and requested is being withheld as a result of any such obligation of confidentiality. (f) ~~Notwithstanding anything~~ Subject to Kimberly-Clark’s indemnification obligations under Section 7.07(g), Kenvue hereby consents to the ~~contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any~~ customary use of its ~~Affiliates~~and Kenvue Subsidiaries’ ~~obtaining funds~~ logos and trademarks in connection with the Financing; provided that such logos and trademarks are used solely in a manner that is not intended to ~~consummate the Merger~~ and ~~the transactions contemplated by this Agreement.~~would not reasonably be expected to harm or dispara

Appears in 2 contracts

Sources: Merger Agreement (Kimberly Clark Corp), Merger Agreement (Kenvue Inc.)

Financing. (a) ~~Subject to~~ The Parent Entities and the ~~terms~~ Merger Subs shall, and ~~conditions~~ shall cause each of ~~this Agreement~~their respective Affiliates to, ~~Parent shall~~ use its reasonable best efforts to ~~take,~~ obtain and consummate the Equity Financing at or ~~cause~~ prior to ~~be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain~~ the ~~Debt Financing~~ Effective Time on the terms described in, and subject only to the conditions ~~described in~~ expressly set forth in, the ~~Debt~~ Equity Commitment Letter ~~pursuant~~ delivered to the ~~terms thereof (including any “market flex” provisions)~~ Company Entities on or prior to the date hereof, including using its reasonable best efforts to ~~seek~~ maintain in full force and effect the Equity Commitment Letter. Without limiting the generality of the foregoing, in the event that all conditions contained in the Equity Commitment Letter have been satisfied (or upon funding will be satisfied), the Parent Entities and the Merger Subs shall, and shall cause the Equity Investors to, fund at, prior to or concurrently with the Effective Time, the Equity Financing required to consummate the Transactions and to pay a portion of the Required Amount at, prior to or concurrently with the Effective Time. The Parent Entities and the Merger Subs shall use their reasonable best efforts to comply with their respective obligations, and enforce ~~its rights~~ their rights, under the ~~Debt~~ Equity Commitment Letter in a timely and diligent manner. The Parent Entities and the ~~event of a breach thereof by the financing provider(s) thereunder. Parent~~ Merger Subs shall not, without the ~~Company’s~~ prior written ~~consent~~consent of the Company Entities, (A) permit any amendment, ~~supplement~~assignment, ~~replacement~~ supplement or other modification ~~to be made~~ to, or any waiver of any provision or remedy under, restate, substitute or replace, the ~~Debt~~ Equity Commitment Letter if such amendment, assignment, supplement, ~~replacement~~modification, ~~modification~~ waiver, restatement, substitution or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that replacement would reasonably be expected to (1) (x) ~~delay~~ adversely impact the ability of any Parent Entity or ~~prevent~~ Merger Sub to enforce their respective rights against any other parties to the ~~funding~~ Equity Commitment Letter in ~~full~~ any respect as so amended, assigned, replaced, restated, substituted, supplemented or otherwise modified, relative to the ability of the ~~Debt~~ Merger Subs to enforce their rights against any of such other parties to the Equity Commitment Letter as in effect on the date hereof, (y) add new (or expand, amend, or otherwise modify any existing) conditions to the receipt of any Equity Financing or otherwise adversely affect (including with respect to timing) the ability or likelihood of the Parent Entities or the Merger Subs to timely consummate the Mergers at the Closing or any of the Transactions or (z) make the timely funding of any Equity Financing or satisfaction of the conditions to obtaining the Equity Financing less likely to occur, (2) reduce the amount of the Equity Financing or (3) prevent, impede, impair or delay the consummation of the Mergers and the Transactions or obtaining an amount of the Equity Financing that, together with the Debt ~~Financing) on~~ Financing and, following the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies consummation of any ~~such amendment~~Company Sale undertaken at the request of the Parent Entities and in accordance with Section 7.16, ~~modification or replacement. (b) Parent shall~~any Available Company Sale Net Cash Proceeds, ~~and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect~~ would at least equal the ~~Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)~~Required Amount, (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt terminate any Equity Commitment Letter, (C) take or fail to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to ~~materially~~ impede, impair, delay or prevent the timely consummation of ~~all~~ the Equity Financing contemplated by the Equity Commitment Letter or ~~any portion~~ (D) adversely affect the ability of the ~~Debt Financing~~Parent Entities and the Merger Subs to enforce their rights against the other parties to any of the Equity Commitment Letter. (db) The Parent Entities and the Merger Subs shall, and shall ~~have~~ cause each of their Affiliates to, use their reasonable best efforts to arrange the ~~right to substitute~~ Debt Financing and obtain the ~~net cash proceeds received by Parent after~~ financing contemplated thereby on the ~~date hereof~~ terms and conditions on or prior to the ~~Closing from consummated offerings or other incurrences~~ Effective Time (including, to the extent required, the full exercise of ~~debt (including notes~~any flex provisions) ~~by Parent for all or any portion of the Debt Financing by reducing commitments under~~ set forth in the Debt Commitment Letter~~; provided that~~ , including using their reasonable best efforts to (vi) ~~such offering or other incurrence of debt does not result~~ maintain in ~~a breach or default under~~full force and effect the Debt Commitment Letter in accordance with the terms and subject to the conditions thereof, ~~or violation of,~~ (ii) comply with their obligations under the Debt Commitment Letter, (iii) negotiate, execute and deliver the Definitive Financing Agreements contemplated by the Debt Commitment Letter on the terms and conditions (including the flex provisions) that are no less favorable to the Parent Entities and the Merger Subs than the terms contemplated by the Debt Commitment Letter; provided, that such other terms do not include or result in a Prohibited Modification, (iv) satisfy on a timely basis (or obtain a waiver of) all conditions to funding that are applicable to the Parent Entities and Merger Subs in the Debt Commitment Letter and the Definitive Financing Agreements, (v) enforce their rights pursuant to the Debt Commitment Letter in a timely and diligent manner and (vi) consummate the Debt Financing at or prior to the Closing on the terms and conditions contemplated by the Debt Commitment Letter, including by causing the Debt Financing Sources to fund the Debt Financing at the Closing. The Parent Entities shall provide to the Company, upon reasonable request, copies of all agreements and other documents relating to the Debt Financing and shall keep the Company reasonably informed on a reasonably current basis and in reasonable detail of material developments in respect of the Debt Financing. The Parent Entities shall give the Company prompt notice of any Financing Failure Event of which the Parent Entities or their Affiliates becomes aware and, as soon as reasonably practicable, the Parent Entities shall provide any information reasonably requested by the Company relating to any Financing Failure Event; provided, that providing such information will not violate any applicable privilege or confidentiality obligation. The Parent Entities and the Merger Subs will fully pay, or cause to be fully paid, all commitment or other fees arising pursuant to the Debt Commitment Letter as and when they become due. (c) The Parent Entities shall not, without the prior written consent of the Company, (i) terminate or permit the termination, withdrawal, repudiation or rescission of, or release any of the obligations of any Debt Financing Source under the Debt Commitment Letter or the Definitive Financing Agreements (other than, for the avoidance of doubt, pursuant to any reduction in the amount of the Debt Financing pursuant to Section 10 of the Debt Commitment Letter), unless such Debt Commitment Letter or Definitive Financing Agreement is replaced at such time with a new commitment letter or definitive agreement that, were it structured as an amendment to such Debt Commitment Letter or Definitive Financing Agreement, would satisfy the following clause (ii), or (ii) permit any amendment, assignment, supplement or other modification to, or any waiver of any provision or remedy under, or restate, substitute or replace, the Debt Commitment Letter or the Definitive Financing Agreements if such amendment, assignment, supplement modification, waiver, restatement, substitution or replacement (w) would reasonably be expected to adversely impacts in any material respect the ability of the Parent Entities or Merger Subs to enforce their respective rights against the Debt Financing Sources party to such Debt Commitment Letter or Definitive Financing Agreement as so amended, assigned, replaced, restated, substituted, supplemented or otherwise modified, relative to the ability of the Parent Entities or Merger Subs to enforce their rights against any of such other parties to the Debt Commitment Letters as in effect on the date hereof, (x) would be reasonably expected to (1) add any new condition to the Debt Financing (or amend or modify any existing condition in any manner adverse to the Parent Entities) or otherwise be reasonably expected to delay or adversely affect the ability of the Parent Entities or the Merger Subs to consummate the Mergers at the Closing or any of the Transactions contemplated by this Agreement, or (2) reasonably be expected to delay or prevent or make less likely the timely funding of the Debt Financing or satisfaction of the conditions to obtaining the Debt Financing, (y) reduces (or would reasonably be expected to have the effect of reducing) the aggregate amount of the Debt Financing ~~committed~~ provided for under such Debt Commitment Letter or Definitive Financing Agreement (including by changing the amount of fees to be paid in respect of the Debt Financing or original issue discount in respect of the Debt Financing) to an amount, when taken together with the available portion of the Debt Financing and the Equity Financing together with, following the consummation of any Company Sale undertaken at the request of the Parent Entities and in accordance with Section 7.16, any Available Company Sale Net Cash Proceeds, less than the Required Amount, or (z) would reasonably be expected to prevent, impede or delay the consummation of the Mergers and the other Transactions contemplated by this Agreement (the effects described in clauses (w) through (z), collectively, the “Prohibited Modifications”); provided, that, subject to Section 7.05(e), the Parent Entities may amend the Debt Commitment Letter ~~following~~ to add Debt Financing Sources, lead arrangers, bookrunners, syndication agents or similar entities who have not executed the Debt Commitment Letter as of the date hereof. In the event any such ~~reduction~~amendment, ~~together~~ modification, waiver or replacement of the Debt Financing in accordance with ~~other cash and cash equivalents available~~ this Section 7.13(c) is effected, any reference in this Agreement to ~~Parent~~the term (A) the “Debt Commitment Letter” will be deemed to mean the Debt Commitment Letter as so amended, ~~is sufficient~~ supplemented, modified, waived or replaced, (B) the “Definitive Financing Agreements” will be deemed to ~~pay all amounts required~~ mean the Definitive Financing Agreements as so amended, supplemented, modified, waived or replaced, (C) the “Debt Financing” will be deemed to ~~be paid in connection with~~ mean the ~~transactions~~ debt financing contemplated by ~~this Agreement~~the Debt Commitment Letter or the Definitive Financing Agreements, as applicable, each as modified pursuant to the foregoing, and (xD) the ~~proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies~~ “Debt Financing Sources” will be deemed to include the ~~Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification~~ Persons signatory to the Debt Commitment Letter ~~relating thereto will be promptly provided~~ or the Definitive Financing Agreements, as applicable, each as modified pursuant to the ~~Company. If commitments under~~ foregoing. (d) In the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or event that any portion of the Debt Financing ~~from~~ becomes unavailable for any reason, including on the ~~same and/or~~ terms and conditions (including the flex provisions) set forth in the Debt Commitment Letter (such unavailability of Debt Financing, a “Financing Failure Event”), the Parent Entities shall use their reasonable best efforts to, as promptly as practicable following the occurrence of such event, (i) obtain alternative financing from alternative sources ~~so long as~~ in an amount, when taken together with the ~~aggregate amount~~ available portion of the Debt Financing, ~~together~~ the Equity Financing and, following the consummation of any Company Sale undertaken at the request of the Parent Entities and in accordance with ~~other cash and cash equivalents available to Parent~~Section 7.16, is any Available Company Sale Net Cash Proceeds, sufficient to pay ~~all amounts required to be paid in connection with~~ the ~~transactions contemplated by this Agreement~~ Required Amount at Closing, and ~~all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to~~ (ii) obtain one or more new debt financing commitment letters with respect to such alternative debt financing, which new debt financing commitment letters will replace the existing Debt Commitment Letter in whole or in part, provided in no event shall their reasonable best efforts be deemed or construed to require them to, obtain alternative financing that includes terms and conditions, taken as a whole, that are less favorable in any material respect to the ~~Company than)~~ Parent Entities and the ~~conditions precedent~~ Merger Subs than the terms and conditions, taken as a whole, set forth in the Debt Commitment Letter, and in each case, as of the date hereof (taking into account any flex provisions applicable thereto contained in the related fee letters) or would require them to ~~supplement~~ pay any fees or ~~replace~~ agree to pay any interest rate amounts or original issue discounts, in either case, in excess of those contemplated by the Debt ~~Financing~~ Commitment Letter as in effect on the date hereof (~~“Alternative Debt Financing”~~taking into account any flex provisions applicable thereto)~~. True~~, ~~correct and complete copies~~ or which would add any new condition to the consummation of ~~each~~ such alternative debt financing, or otherwise be reasonably expected to make the timely funding of such alternative financing ~~commitment~~ in ~~respect~~ full less likely to occur, than the conditions set forth in the Debt Commitment Letter as of ~~such Alternative~~ the date hereof; provided, further, for the avoidance of doubt, that in no event shall a reduction in the amount of Debt Financing ~~(each, a “New~~ pursuant to Section 10 of the Debt Commitment ~~Letter”), together~~ Letter be deemed to be a Financing Failure Event. The Parent Entities shall promptly provide the Company Entities with ~~all related~~ a copy of any such new debt financing commitment letter (and a redacted fee ~~letters and associated engagement letters~~ letter in connection therewith (~~solely in the case~~ of ~~the fee letter, with~~ which only the fee amounts, ~~pricing,~~ price caps and economic “~~market~~ flex” ~~provisions and other economic~~ terms have been redacted; provided, that such redacted terms do not ~~adversely~~ affect the ~~enforceability, availability or~~ conditionality ~~of,~~ of or the ~~aggregate~~ amount of ~~proceeds available under, the~~ Debt Financing ~~contained therein redacted~~to be funded at the Closing)~~, will be promptly provided to the Company~~). In the event that any ~~New Debt Commitment Letter is obtained~~new debt financing commitment letters are obtained in accordance with this Section 7.13(d), ~~(i)~~ any reference in this Agreement to (A) the “Debt Commitment Letter” will be deemed to mean the Debt Commitment Letter to the extent not superseded by one or more new debt financing commitment letters at the time in question and any new debt financing commitment letters to the extent then in effect, (B) the “Financing” or the “Debt Financing” ~~shall include~~ will be deemed to mean the debt financing contemplated by the Debt Commitment Letter as modified pursuant to ~~clause~~ the foregoing and (iiC) ~~below, (ii) any reference in this Agreement to~~ the “Debt ~~Commitment Letter~~Financing Sources” ~~shall~~ will be deemed to include the ~~Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter~~ Persons signatory to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectnew debt financing commitment letters. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.

Appears in 2 contracts

Sources: Merger Agreement (Endeavor Group Holdings, Inc.), Merger Agreement (Emanuel Ariel)

Financing. (a) Subject to the terms and conditions of this Agreement, Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights with respect to funding under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) subject to Parent’s rights under Section 7.12(b) which shall not require the Company’s consent, reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights with respect to funding against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Acceptance Time or the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement. (b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section ~~6.13~~7.12), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Offer or the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights with respect to funding under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations with respect to funding under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section ~~6.13(c~~7.12(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all cash amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section ~~6.14~~ 7.13 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all cash amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each fee letter relating to each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section ~~6.14(a)(iii~~7.13(a)(vi). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Offer, the Merger and the transactions contemplated by this Agreement.

Appears in 2 contracts

Sources: Merger Agreement (Microsemi Corp), Merger Agreement (PMC Sierra Inc)

Financing. (a) ~~Subject~~ Each of Parent and Merger Sub shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy pursuant to, the Financing Letters if such amendment, modification or waiver would or would reasonably be expected to (i) reduce the aggregate amount of the Debt Financing unless the Equity Financing is increased by an equivalent amount; (ii) impose new or additional conditions or otherwise expand, amend or modify any of the conditions to the receipt of the Financing in a manner that would reasonably be expected to delay or prevent in any material respect the ability of Parent to consummate the Merger; or (iii) adversely impact the ability of Parent, Merger Sub or the Company, as applicable, to enforce its rights against the other parties to the Financing Letters. Notwithstanding the foregoing, assignments consummated pursuant to the terms of the Financing Letters are permitted. (b) Each of Parent and ~~conditions of this Agreement, Parent~~ Merger Sub shall use ~~its~~ commercially reasonable ~~best~~ efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper and advisable ~~or proper~~ to arrange and obtain the ~~Debt~~ Financing on the terms and conditions (including the flex provisions applicable thereto) described in the ~~Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions)~~ Financing Letters, including using ~~its~~ commercially reasonable ~~best~~ efforts to ~~seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s~~(i) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement. (b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the ~~Debt Commitment Letter~~ Financing Letters in accordance with the terms and subject to the conditions thereof; (~~provided that the Debt Commitment Letter may be amended~~ii) negotiate, ~~supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate~~ execute and ~~enter into~~ deliver definitive agreements with respect to the ~~Debt Commitment Letter (~~Financing contemplated by the ~~“Debt~~ Financing ~~Agreements”)~~ Letters on the terms and conditions ~~that are not materially less favorable to Parent than those contained in~~ (including the ~~Debt Commitment Letter,~~ flex provisions) contemplated by the Financing Letters; (Ciii) to satisfy on a timely basis ~~(or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger,~~ all conditions to ~~receipt of the full amount of the Debt Financing at the Closing set forth therein~~ funding that are ~~within its control or subject~~ applicable to ~~its influence and,~~ Parent and Merger Sub in the Financing Letters and/or definitive agreements for the Financings; (iv) upon satisfaction of the conditions set forth in the ~~Debt Commitment Letter~~Financing Letters and this Agreement, to including the expiration of the waiting period, consummate the ~~Debt~~ Financing at or prior to ~~the~~ Closing, ; and (Dv) to comply in all material respects with its obligations ~~under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior~~ pursuant to the ~~Effective Time. In the event~~ Financing Letters; provided, however, that ~~all conditions precedent expressly set forth in the Debt Commitment Letter have been or~~under no circumstances shall Parent, ~~upon funding~~ Merger Sub or any other Parent Related Party be required to commence or sustain a Legal Proceeding against any of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid Sources in connection with ~~the transactions contemplated by~~ this Agreement, ~~(x)~~ the ~~proceeds of such debt offerings~~ Transactions or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectCommitment. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.

Appears in 2 contracts

Sources: Merger Agreement (Evans Hugh D), Merger Agreement (Anaren Inc)

Financing. (a) ~~Subject to the terms and conditions of this Agreement,~~ Parent shall use its reasonable best efforts to ~~take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and~~ obtain the proceeds of the Debt Financing on the terms and conditions described in the ~~Debt~~ Commitment Letter ~~pursuant to the terms thereof (including any “market flex” provisions)~~ and Fee Letter, including using ~~its~~ reasonable best efforts to ~~seek~~ (i) maintain in effect the Commitment Letter and Fee Letter in accordance with their terms, (ii) negotiate definitive agreements with respect to ~~enforce its rights under~~ the Debt Financing (the “Definitive Agreements”) consistent with the terms and conditions contained therein (including, as necessary, the “flex” provisions contained in the Fee Letter) and (iii) satisfy (or, if deemed advisable by Parent, obtain the waiver of) on a timely basis all conditions in the Commitment Letter, Fee Letter and the Definitive Agreements and comply with its obligations thereunder. In the event that all conditions contained in the Commitment Letter in and Fee Letter have been satisfied and Parent is required to consummate the ~~event~~ Closing pursuant to Section 2.4, Parent shall use reasonable best efforts to cause each Lender to fund its respective committed portion of ~~a breach thereof~~ the Debt Financing required to consummate the transactions contemplated by this Agreement and to pay related fees and expenses on the ~~financing provider(s) thereunder~~Closing Date. Parent shall not, without the ~~Company’s~~ prior written ~~consent~~consent of the Company (which shall not be unreasonably withheld, conditioned or delayed), permit any ~~amendment, supplement, replacement~~ amendment or modification ~~to be made~~ to, or any waiver of any provision (including any remedy) under, or voluntarily replace (it being understood that any Alternative Debt Financing shall not be deemed a voluntary replacement for purposes of the ~~Debt~~ sentence), the Commitment Letter or Fee Letter if such amendment, ~~supplement~~modification, ~~replacement, modification~~ or waiver or voluntary replacement (Aw) ~~reduces the aggregate amount of the cash proceeds from the Debt Financing~~ adds new (or (Badversely modifies any existing) ~~imposes new or additional~~ conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full consummation of the Debt Financing ~~(or satisfaction of~~ as compared to those in the ~~conditions to the Debt Financing)~~ Commitment Letter and Fee Letter as in effect on the ~~Closing Date~~date of this Agreement, or (yx) adversely ~~affect~~ affects the ability of Parent to enforce its rights against other parties to the ~~Debt~~ Commitment Letter, Fee Letter or the ~~definitive agreements with respect thereto~~ Definitive Agreements as so amended, replaced, supplemented or otherwise modified, relative to the ability of Parent to enforce its rights against such other parties to the Commitment Letter and Fee Letter as in effect on the date hereof or in the Definitive Agreements, (y) reduces the aggregate amount of the Debt Financing, or (z) would otherwise reasonably be expected to prevent, impede or materially delay the consummation of the Merger and the other transactions contemplated by this Agreement; provided, that ~~Parent may amend~~ for the ~~Debt~~ avoidance of doubt no consent from the Company shall be required for: (A) any amendment, replacement, supplement or modification of the Commitment Letter that is limited to ~~add or replace~~ adding lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Commitment Letter as of the date of this Agreement (including in replacement of a Lender), (B) implementation or exercise of any “flex” provisions provided in the Fee Letter as in effect as of the date hereof or (C) any amendment, replacement, supplement or modification to the Commitment Letter or Definitive Agreements so long as such action would not ~~reasonably~~ be ~~expected to delay or prevent~~ prohibited by the ~~Closing~~foregoing clauses (w)-(z)~~. Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement~~. (b) In the event that any portion of the Debt Financing becomes unavailable, regardless of the reason therefor (other than a breach by the Company of this Agreement which prevents or renders impracticable the consummation of the Debt Financing) Parent ~~shall, and shall cause its Affiliates and Representatives to,~~ will (1) use its reasonable best efforts ~~(A)~~ to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter obtain alternative debt financing (the “Alternative Debt Financing”) (in an amount sufficient, when taken together with available cash on hand, and any then-available Debt Financing ~~Agreements”~~pursuant to any then-existing Commitment Letter, to consummate the transactions contemplated by this Agreement and to pay related fees and expenses earned, due and payable as of the Closing Date) on ~~the~~ terms ~~and conditions that are~~ not ~~materially~~ less favorable in the aggregate to Parent than those contained in the ~~Debt~~ Commitment ~~Letter,~~ Letter and the Fee Letter that the alternative financing would replace (Ctaking into account any flex provisions) from the same or other sources and which do not include any incremental conditionality to ~~satisfy on a timely basis (or obtain~~ the ~~waiver of), and in a manner that will not impede the ability~~ consummation of ~~the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein~~ such alternative debt financing that are ~~within its control~~ more onerous to Parent or ~~subject to its influence and, upon satisfaction of~~ the Company (in the aggregate) than the conditions set forth in the ~~Debt~~ Commitment ~~Letter, to consummate~~ Letter in effect as of the ~~Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter,~~ date of this Agreement and (E2) ~~to consummate~~ promptly notify the ~~Debt Financing at or prior to~~ Company of such unavailability and the ~~Effective Time~~reason therefor. In furtherance of and not in limitation of the foregoing, in the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing structured as high yield financing is unavailable, regardless of the reason therefor, (B) all closing conditions contained in Article VII and Annex I shall be satisfied or waived (other than those conditions that by their nature are to be satisfied or waived at the Closing, provided that such conditions are capable of being satisfied as of such day assuming the Closing was to occur on such day) and (C) the bridge facilities contemplated by the ~~Debt~~ Commitment Letter (or alternative bridge facilities obtained in accordance with this Section 6.9) are available on the terms ~~set forth therein.~~ and conditions described in the Commitment Letter (or replacements thereof), then Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) cause the proceeds of such ~~debt offerings or other incurrences have been received by Parent~~ bridge financing to be used in ~~cash, (y) Parent promptly notifies the Company~~ lieu of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations affected portion of the ~~Company and its Subsidiaries~~ high yield financing to consummate the Closing when Parent is required to do so pursuant to Section ~~6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion~~ 2.4. (c) For purposes of the ~~Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash~~ foregoing Sections 6.9(a) and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (~~or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”~~b). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) ~~any reference in this Agreement to~~ the term “~~Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt~~ Commitment Letter” shall be deemed to include ~~the Debt~~ any commitment letter (or similar agreement) with respect to any alternative debt financing arranged in compliance herewith (and any Commitment ~~Letter which is not superseded by a New Debt Commitment Letter~~ Letters remaining in effect at the time in ~~question and each New Debt Commitment Letter to~~ question), (ii) the ~~extent then in effect, and (iii) any reference in this Agreement to~~ term “~~fee letter~~Fee Letter” shall be deemed to include any fee letter ~~relating~~ (or similar agreement) with respect to any alternative debt financing arranged in compliance with this Section 6.9, and (iii) the term “Lenders” shall be deemed to include any lenders providing the alternative debt financing arranged in compliance herewith. Parent shall keep the Company reasonably informed on a reasonably current basis of the status of its efforts to consummate the Debt ~~Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date,~~ Financing. Parent shall provide ~~all funds required to effect the repayment of all indebtedness under~~ the Company ~~Credit Agreement in full in accordance~~ with prompt oral and written notice of any breach or default by any party to any Commitment Letters or the ~~Company Credit Agreement~~Definitive Agreements of which Parent gains knowledge and the receipt of any written notice or other written communication from any Lender, ~~subject~~ guarantor, or other financing source with respect to ~~compliance~~ any breach or default or, termination or repudiation by any party to any Commitment Letters or the Definitive Agreements or any provision thereof. For the avoidance of doubt, Parent shall, directly or indirectly, make all proceeds of the Debt Financing received by Parent available to Acquisition Sub as are required for Acquisition Sub to perform its obligations hereunder (including with ~~Section 6.14(a)(iii~~respect to the consummation of the Offer and the payment for shares tendered thereby). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.

Appears in 2 contracts

Sources: Merger Agreement (Harland Clarke Holdings Corp), Merger Agreement (Valassis Communications Inc)

Financing. (a) ~~Subject~~ Cedar shall use, and shall cause the Cedar Subsidiaries to ~~the terms and conditions of this Agreement~~use, ~~Parent shall use its~~ their respective reasonable best efforts to ~~take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to~~ arrange ~~and obtain~~ the ~~Debt~~ Financing on the terms and conditions described in the ~~Debt~~ Commitment Letter ~~pursuant to the terms thereof~~ (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner provided that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent Cedar may amend the ~~Debt~~ Commitment Letter to add ~~or replace~~ lenders, lead arrangers, bookrunners, syndication agents or similar entities or otherwise replace or amend the Commitment Letter so long as such action would not reasonably be expected to delay or prevent the ~~Closing~~Closing or add conditions or otherwise materially restrict the availability of the Financing). ~~Parent~~ In the event that Cedar becomes aware that any portion of the Financing is unavailable in the manner or from the sources contemplated in the Commitment Letter, Cedar use its reasonable best efforts to obtain alternative financing for such portion from alternative sources. Cedar shall ~~promptly deliver~~ not agree to ~~the Company true, complete and correct copies of~~ nor permit any ~~such~~ amendment, modification or ~~replacement~~waiver (other than a waiver of a condition to the Financing) of the Commitment Letter, any other agreement, arrangement or understanding relating to the Financing or the definitive agreements relating to the Financing that is adverse to Cedar or Pine without Pine’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed. (b) ~~Parent shall~~Pine shall provide, shall cause the Pine Subsidiaries to provide, and shall ~~cause its Affiliates and Representatives to,~~ use its reasonable best efforts ~~(A)~~ to ~~maintain~~ cause its and their Representatives to provide, such reasonable cooperation in ~~effect~~ connection with the ~~Debt Commitment Letter (provided that~~ arrangement of the ~~Debt Commitment Letter~~ Financing as may be ~~amended~~reasonably requested by Cedar, ~~supplemented~~including participating in meetings and presentations, ~~replaced~~providing information, ~~modified or waived as provided in this Section 6.13)~~documents, ~~(B) to negotiate~~ opinions and ~~enter~~ certificates, entering into ~~definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms~~ agreements, and ~~conditions~~ other actions that are ~~not materially less favorable~~ or may be customary in connection with the Financing or necessary to ~~Parent than those contained in the Debt Commitment Letter, (C)~~ permit Cedar to ~~satisfy on a timely basis (~~fulfill conditions or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and ~~definitive financing agreements and to fund on~~ related fee letters; provided that none of Pine or ~~before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail~~ any of the ~~status of its efforts~~ Pine Subsidiaries shall be required to ~~arrange~~ pay any commitment or other similar fee or enter into any definitive agreement or incur any other liability in connection with the ~~Debt~~ Financing~~, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements~~. (c) ~~Without limiting~~ All non-public or otherwise confidential information regarding either party obtained by the ~~foregoing, Parent agrees~~ other party pursuant to ~~notify the Company promptly, and in any event within two~~ paragraphs (2a) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (Bb) ~~any other party~~ shall be kept confidential in accordance with the Confidentiality Agreement; provided, however, that Cedar and its Representatives shall be permitted to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any disclose information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof as necessary and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together consistent with ~~other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid~~ customary practices in connection with the ~~transactions contemplated~~ Financing subject to customary confidentiality arrangements. Cedar shall indemnify and hold harmless Pine, the Pine Subsidiaries and their respective Representatives from and against any and all losses or damages suffered or incurred by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero them in connection with the ~~preceding sentence, the obligations~~ arrangement of the ~~Company~~ Financing and ~~its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or~~ any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid information utilized in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effecttherewith. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.

Appears in 2 contracts

Sources: Merger Agreement (Embarq CORP), Merger Agreement (Centurytel Inc)

Financing. (a) ~~Subject~~ Parent shall use reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary or advisable to consummate the ~~terms~~ Equity Financing on the Closing Date, and ~~conditions of this Agreement,~~ Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary or advisable to arrange the Debt Financing in an amount necessary, ~~advisable or proper~~ together with the Equity Financing, to ~~arrange~~ fund the Financing Amounts and ~~obtain~~ to consummate the Debt Financing on the ~~terms~~ Closing Date, including the following: (i) maintaining in full force and ~~conditions described in~~ effect the Debt Commitment Letter ~~pursuant to the terms thereof (including~~ and not permitting any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement amendment or modification to be made to, or not consenting to any waiver of any provision or remedy under, and not replacing, the Debt Commitment Letter (other than as contemplated by the Debt Commitment Letter or any Debt Fee Letter as in effect on the date hereof), in any case if such amendment, ~~supplement~~modification, waiver or replacement~~, modification or waiver~~ : (A) reduces (or would reasonably be expected to have the effect of reducing) the aggregate amount of the ~~cash proceeds from~~ Debt Financing (including by changing the amount of fees to be paid or original issue discount in connection with the Debt Financing) (unless an equal amount from alternative financing sources is then made available) to an amount, together with the Equity Financing, less than what is necessary to fund the Financing Amounts or (B) imposes new or additional conditions ~~to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing,~~ or otherwise expands, amends or modifies any ~~other provision~~ of the conditions to the funding of any of the Debt ~~Commitment Letter~~ Financing in a manner that would reasonably be expected to (x1) delay or prevent the Closing, (2) make the funding ~~in full~~ of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) ~~on the Closing Date,~~ materially less likely to occur or (y3) materially and adversely ~~affect~~ impact the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto when required pursuant to this Agreement (~~provided~~provided that (x) so long as not otherwise prohibited by the other provisions of this Section 5.10, ~~that~~ for the avoidance of doubt, Parent may amend the Debt Commitment Letter and/or any Debt Fee Letter to add ~~or replace~~ lenders, lead arrangers, bookrunners, syndication agents or similar entities ~~so long as such action would~~ who had not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement. (b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect executed the Debt Commitment Letter ~~(provided that~~ or the Debt ~~Commitment Letter may be amended, supplemented, replaced, modified~~ Fee Letters as of the date hereof; and (y) Parent shall reasonably promptly furnish to the Company copies of any executed versions of any agreements or ~~waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements~~ other documentation with respect to such amendment, modification, waiver or replacement); (ii) causing the ~~Debt~~ Equity Financing to be consummated upon satisfaction of the conditions contained in the Equity Commitment ~~Letter~~ Letter; (iii) satisfying on a timely basis (or, if available, obtain waivers of) the “Financing Conditions; (iv) negotiating, executing and delivering Debt Financing ~~Agreements”) on~~ Documents that reflect and are consistent with the terms ~~and conditions that are not materially less favorable to Parent than those~~ contained in the Debt Commitment ~~Letter, (C) to satisfy on a timely basis (or obtain the waiver of),~~ Letter and ~~in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of~~ the Debt Fee Letters (including “market flex” provisions (if any)) or on such other terms acceptable to the Financing at Sources; (v) in the ~~Closing set forth therein~~ event that ~~are within its control or subject to its influence and, upon satisfaction of~~ the conditions set forth in ~~the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter,~~ Sections 6.1 and ~~(E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter~~ 6.3 have been orsatisfied, upon funding of the Debt Financing ~~will be,~~ would be satisfied, ~~Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause~~ causing the full amount of the Financing ~~Sources, lenders and~~ to be funded at or prior to the ~~other persons providing or committing to provide the Debt Financing to comply with their obligations~~ Closing; and (vi) enforcing its rights under the ~~Debt~~ Commitment Letters in the event of a Financing Failure Event. (b) Parent shall not amend, modify, waive or replace, or agree to amend, modify, waive or replace (in any case whether by action or inaction) any term of the Equity Commitment Letter ~~and definitive financing agreements and to fund on or before~~ without the ~~Effective Time~~ prior written consent of the ~~Debt Financing.~~ Company. (c) Upon request of the Company, Parent shall keep the Company informed ~~on a current basis and~~ in reasonable detail of the status of its efforts to arrange the ~~Debt Financing, and, promptly following request by the Company, provide~~ Financing and any material developments with respect to the ~~Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing~~Financing. As soon as reasonably practicable, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall ~~promptly~~ provide any information reasonably requested by the Company relating to any ~~circumstances referred to in this Section 6.13(c).~~ Financing Failure Event. (d) Neither Parent ~~shall not,~~ nor ~~shall it permit~~ any of its ~~Affiliates to, without the prior written consent of the Company,~~ affiliates shall take any action ~~or enter into any transaction~~ that would reasonably be expected to materially ~~impair,~~ delay or prevent the consummation ~~of all or any portion~~ of the Debt Financing or Equity Financing. (de) If any Financing Failure Event occurs, Parent shall ~~have~~ promptly notify the ~~right~~ Company thereof and use its reasonable best efforts to ~~substitute the net cash proceeds received by Parent after the date hereof~~ obtain, as promptly as practicable and in any event prior to the ~~Closing from consummated offerings or other incurrences of debt (including notes) by~~ Outside Date, in consultation with the Company, on terms as favorable to Parent ~~for all or any portion of~~ as the ~~Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result~~ terms in ~~a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under~~ the Debt Commitment Letter ~~following~~ and the Debt Fee Letters (including “market flex” provisions (if any)) or as are reasonably available for financings of the type contemplated by the Debt Commitment Letter and the Debt Fee Letters in the debt markets at such ~~reduction~~time, ~~together~~ alternative debt financing (“Debt Replacement Financing”) in an amount that when added with ~~other cash and cash equivalents available to Parent, is~~ the Equity Financing would be sufficient to pay ~~all amounts required~~ the Financing Amounts; provided that, notwithstanding anything herein to the contrary but subject to the penultimate sentence of this Section 5.10, in no event shall reasonable best efforts be ~~paid~~ construed to require that Parent (A) pay any fees or original issue discount in ~~connection with the transactions~~ excess of those contemplated by ~~this Agreement,~~ the Debt Commitment Letter and the Debt Fee Letters (xincluding “market flex” provisions (if any)) as in effect of the ~~proceeds of such debt offerings~~ date hereof or (B) agree to pricing or other ~~incurrences have been received~~ economic terms that are less favorable (taken as a whole) than those contemplated by the Debt Commitment Letter and the Debt Fee Letters (including “market flex” provisions (if any)) as in effect of the date hereof. Parent ~~in cash, (y) Parent promptly notifies~~ shall deliver to the Company ~~of such substitution and reduction and (z)~~ true, correct and complete copies of ~~each material amendment~~ all contracts or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries other arrangements pursuant to ~~Section 6.14 shall no longer be in effect. Further, Parent~~ which any alternative source shall have ~~the right~~ committed to ~~substitute commitments in respect of other financings for all or~~ provide any portion of the Debt Replacement Financing ~~from~~ (provided that any fee letters in connection therewith may be redacted in a manner consistent with the Debt Fee Letters provided as of the date hereof). Notwithstanding anything else herein to the contrary, in no event shall the receipt or availability of any funds or financing (including, for the avoidance of doubt, the Financing) by Buyer or any Affiliate or any other financing or other transactions be a condition to any of Buyer’s obligations hereunder. Any Debt Replacement financing shall be subject to the same ~~and/or alternative financing sources so long~~ obligations as ~~the aggregate amount of~~ set forth in this Section 5.10 with respect to the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.

Appears in 2 contracts

Sources: Merger Agreement (Patterson Companies, Inc.), Merger Agreement (Patterson Companies, Inc.)

Financing. (a) Subject to the terms and conditions of this Agreement, Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate, on a timely basis, on or ~~proper~~ prior to ~~arrange and obtain~~ the ~~Debt~~ Closing Date, the Financing contemplated by the Commitment Letters on the terms ~~and conditions described in~~ set forth therein (subject to any “flex” provisions applicable to the Debt ~~Commitment Letter pursuant to the terms thereof (including any~~ Financing; provided that such “~~market~~ flex” ~~provisions) including using~~ provisions would not adversely affect the amount or availability of the Debt Financing). Parent shall use its reasonable best efforts to ~~seek~~ (i) maintain in effect the Commitment Letters and comply with its obligations and conditions thereunder, (ii) negotiate and enter into definitive agreements on a timely basis with respect to ~~enforce~~ the Financing on terms and conditions (subject to any “flex” provisions applicable to the Debt Financing; provided that such “flex” provisions would not adversely affect the amount or availability of the Debt Financing) contained in the Commitment Letters or otherwise no less favorable to Parent with respect to timing, amount or conditions than those contained in the Commitment Letters (the “Financing Agreements”), and (iii) satisfy (or have waived) on a timely basis all conditions and covenants applicable to Parent in the Commitment Letters that are within its ~~rights~~ control at or prior to the Closing (including the payment of any commitment, engagement or placement fees required as a condition to the Debt Financing), and otherwise comply in all material respects with its obligations under the ~~Debt~~ Commitment ~~Letter in~~ Letters (including the ~~event of a breach thereof by the financing provider(s) thereunder~~Financing Agreements). Parent shall ~~not~~keep the Company reasonably informed of material developments in respect of Parent’s efforts to arrange the Financing, including any changes to the respective amounts of the Debt Financing and Equity Financing. Prior to the Closing, without the ~~Company’s~~ prior written ~~consent~~consent of the Company, ~~permit~~ Parent shall not agree to, or permit, any amendment, ~~supplement, replacement~~ modification or ~~modification to be made to~~supplement of, or ~~any~~ waiver ~~of any provision~~ under, the ~~Debt~~ Commitment ~~Letter if~~ Letters to the extent such amendment, ~~supplement~~modification, ~~replacement, modification~~ supplement or waiver would (Ai) ~~reduces~~ reduce the aggregate amount to be funded under the Financing (including by changing the amount of ~~the cash proceeds from~~ fees to be paid or original issue discount of the Debt Financing or similar fees) unless (Bx) ~~imposes new or additional conditions to~~ in the ~~initial funding or otherwise expands any~~ case of ~~the conditions to the receipt of~~ a reduction in the Debt Financing, the Equity Financing is increased by a corresponding amount or ~~otherwise expands~~(y) in the case of a reduction in the Equity Financing, ~~amends or modifies any other provision of~~ the Debt ~~Commitment Letter~~ Financing is increased by a corresponding amount, (ii) amend, modify or supplement the conditions or contingencies to the Financing in a manner that would reasonably be expected to make it less likely the Financing will be funded or imposes new or additional conditions or expands any existing condition to the receipt of the Financing at the Closing or (iii) be reasonably expected to prevent or materially delay the consummation of the transactions contemplated by this Agreement. Parent shall promptly deliver to the Company true and completed copies of any such amendment, supplement, modification or waiver (which, in the case of fee letters, may be redacted to omit numerical amounts and certain economic “flex” terms, none of which would adversely affect the amount or availability of the Debt Financing). Notwithstanding the foregoing, (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the ~~Debt~~ Commitment ~~Letter~~ Letters to add ~~or replace~~ investors, lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Commitment Letters as of the date hereof and, in connection therewith, amend the economic and other arrangements with respect to the existing and additional investors, lenders, lead arrangers, bookrunners, syndication agents or similar entities, if the addition of such additional parties and amendment of additional terms do not adversely impact the aggregate amount of the Financing to be funded at the Closing and (y) in the event that Parent is required pursuant to this Section 7.11 to provide any information that is subject to attorney-client or similar privilege, Parent may withhold disclosure of such information so long as Parent gives notice to the Company of the fact that it is withholding such ~~action~~ information and thereafter the Company and Parent shall use their respective reasonable best efforts to cause such information to be provided in a manner that would not reasonably be expected to ~~delay~~ waive the applicable privilege or ~~prevent~~ protection. (b) In the ~~Closing)~~event any portion of the Equity Financing or the Debt Financing becomes unavailable on the terms and conditions (including any “flex” provisions applicable to the Debt Financing) contemplated in the Investment Agreements or the Debt Commitment Letters, as applicable, and such portion is necessary to fund the transactions contemplated by this Agreement, Parent shall promptly notify the Company and shall, (i) with respect to the Equity Financing, use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange to obtain as promptly as practicable alternative equity financing from alternative sources for such portion (x) on terms and conditions not materially less favorable to the Company than the Investment Agreements and (y) in an amount equal to the amount of the Equity Financing and (ii) with respect to the Debt Financing, use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange to obtain as promptly as practicable alternative debt financing from alternative sources for such portion (x) on terms and conditions not materially less favorable to Parent than the Debt Commitment Letters and (y) in an amount equal to the amount of the Debt Financing, such that the amount of alternative financing obtained under (i) and (ii) equals an amount sufficient to consummate the Merger. To the extent that Parent is unable to obtain any amount of alternative equity financing to replace the Equity Financing, Parent shall draw upon any additional amounts available under the Debt Financing to cover the shortfall. If obtained, Parent shall promptly deliver to the Company ~~true,~~ true and complete ~~and correct~~ copies of a new equity commitment or a new debt financing commitment, as applicable, pursuant to which any such ~~amendment, modification or replacement. (b)~~ alternative source shall have committed to provide Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability any portion of the ~~parties to consummate the Merger, all conditions to receipt of the full amount of the Debt~~ Equity Financing ~~at the Closing set forth therein that are within its control~~ or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, ~~and, promptly following request by the Company, provide~~ as applicable. References in this Agreement to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the ~~Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to~~ “Equity Financing” shall include the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing equity financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall notInvestment Agreements as amended, ~~nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action~~ modified or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof replaced and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference references in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment ~~Letter~~ Letters as amended, modified ~~pursuant to clause (ii) below~~or replaced, (ii) ~~any reference in this Agreement to~~ the Investment Agreements and the “Debt Commitment ~~Letter~~Letters” shall ~~be deemed to~~ include ~~the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect~~such documents as amended, modified or replaced and (iii) “Equity Financing Sources” and “Debt Financing Sources” shall include the providers of equity or debt financing, as applicable, under such documents as amended, modified or replaced (in the case of each of clauses (i), (ii) and (iii), including replacement with alternative financing and alternative equity or debt financing commitments (as applicable) pursuant to this Section 7.11 from and after such amendment, modification or replacement); provided, that fee letters or side letters which do not contain “flex” or other provisions which affect the terms or conditions of the Debt Financing shall not be required to be provided. (c) Parent acknowledges and agrees that the obtaining of the Financing or any ~~reference in~~ alternate Financing pursuant to Section 7.11(b) is not a condition to the Closing and reaffirms its obligation to consummate the transactions contemplated by this Agreement irrespective and independently of the availability of the Financing or any alternative Financing. (d) The Company shall use its reasonable best efforts to provide, and to cause its Subsidiaries and its and their Representatives to provide, to Parent such reasonable cooperation that is customary in connection with the arrangement of the Debt Financing, as may be reasonably requested by Parent, including by using its reasonable best efforts to (i) upon reasonable advance notice, cause members of senior management and the Representatives of the Company and its Subsidiaries to be available to participate in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with ratings agencies, in each case in connection with the Debt Financing, (ii) furnish as promptly as reasonably practicable to the Parent and the Debt Financing Sources the Required Information as to the Company and its Subsidiaries and assist the Parent with the preparation of customary materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses and similar documents required in connection with the Debt Financing (the “~~fee letter~~Offering Documents”), in each case to the extent, and solely to the extent, such materials relate to information concerning the Company and its Subsidiaries, (iii) assist Parent in preparing pro forma financial statements if Parent determines such pro forma financial statements are legally required or customary in connection with the Debt Financing (or if reasonably requested by the Debt Financing Sources), it being understood that the Company need only assist in the preparation thereof, but shall not be required to prepare independently any separate pro forma financial statements, (iv) upon Parent’s request, issuing customary representation letters to the Company’s independent registered public accounting firm and using reasonable best efforts to obtain, consistent with customary practice consent to SEC filings and offering memoranda that include or incorporate the Company’s consolidated financial information and their reports thereon, in each case, to the extent such consent is required, customary reports and customary comfort letters (including “negative assurance” ~~shall be deemed~~ comfort) from the Company’s registered public accounting firm with respect to ~~include~~ financial information and consents to the use of such accountants’ audit reports relating to the Company and its Subsidiaries, (v) provide customary authorization letters to the Debt Financing Sources (including with respect to the absence of material non-public information concerning the Company and its Subsidiaries in the public side version of documents delivered to prospective lenders) and, to the extent necessary, consents of accountants for use of their reports in any ~~fee letter~~ materials relating to the Debt ~~Commitment Letter~~ Financing, (vi) provide all documentation and other information as is required by applicable “know your customer” and anti-money laundering rules and regulations including without limitation the USA PATRIOT Act to the extent reasonably requested at least five (5) Business Days prior to the anticipated Closing Date, (vii) subject to Section 7.11(j), assist in the preparation of and executing and delivering one or more credit agreements, indentures, purchase agreements, pledge and security documents, mortgages, guarantees and other definitive financing documents or other certificates or documents as may reasonably be requested by Parent, (viii) subject to Section 7.11(j), take all reasonable actions requested by Parent necessary to permit the Debt Financing Sources to evaluate the Company’s assets and cash management policies and procedures relating thereto for the purposes of establishing collateral arrangements as of the Closing and to cooperate with other due diligence conducted by the Debt Financing Sources, (ix) subject to Section 7.11(j), take all corporate actions, subject to the occurrence of the Closing, reasonably requested by Parent or its Debt Financing Sources that are necessary or customary to permit the consummation of the Debt Financing, (x) subject to Section 7.11(j), obtain customary evidence of authority, customary officer’s certificates, good standing certificates (to the extent applicable) in the respective jurisdictions of organization of the Company and its Subsidiaries, customary lien searches with respect to the Company and its Subsidiaries and insurance certificates, as is customary and to the extent reasonably requested by Parent or its Debt Financing Sources in connection with the closing of the Debt Financing, (xi) allow the Debt Financing Sources to have access to the existing lending relationships of the Company and its Subsidiaries and (xii) effecting the payoff of the Company Credit Agreement concurrently with the Closing. The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the Debt Financing; provided, however, that such logos are used solely in a manner that is not ~~superseded by~~ intended to or reasonably likely to harm or disparage the Company or any ~~New Debt Commitment Letter at~~ of its Subsidiaries or the ~~time in question and each New Debt Commitment Letter to~~ reputation or goodwill of the ~~extent then in effect~~Company or any of its Subsidiaries. (e) On The Company and its Subsidiaries shall use their reasonable best efforts to periodically update any Required Information provided to Parent as may be necessary so that such Required Information (i) is Compliant and (ii) meets the ~~Closing Date~~applicable requirements set forth in the definition of “Required Information”. In addition, if, in connection with a marketing effort contemplated by the Debt Commitment Letters, Parent reasonably requests the Company to file a Current Report on Form 8-K pursuant to the Exchange Act that contains material non-public information which Parent in consultation with the Company and the Debt Financing Sources reasonably determines to include in a customary offering memorandum for the Debt Financing, then the Company shall ~~provide~~ promptly file such Current Report on Form 8-K. (f) At the reasonable request of Parent, upon reasonable advance notice, the Company shall, and shall cause its Subsidiaries to, promptly take such actions in respect of the Company Notes, including as set forth in Section 7.12, and to take, or cause to be taken, all ~~funds required~~ actions and to do, or cause to be done, all things necessary, proper or advisable to effect the ~~repayment~~ release (and provide evidence of such release) of all ~~indebtedness under~~ Liens and guarantees provided in respect of the Company ~~Credit Agreement in full in accordance~~ Notes upon consummation of the Company Notes Redemption. (g) The Company shall (i) negotiate a customary payoff letter with BMO ▇▇▇▇▇▇ Bank, N.A. with respect to the Company Credit Agreement, ~~subject~~ in form and substance reasonably satisfactory to ~~compliance with Section 6.14(a)(iii)~~Parent, and (ii) deliver or cause to be delivered such payoff letter to Parent on or prior to the Closing. (fh) All non-public or otherwise confidential information regarding the Company obtained by the Acquirer Parties or their Representatives pursuant to Section 7.11(c) shall be kept confidential in accordance with the Confidentiality Agreement; provided, that notwithstanding the terms of the Confidentiality Agreement, upon reasonable advance notice to the Company, Parent may provide such information to potential sources of capital and to rating agencies and prospective lenders during syndication of the Debt Financing subject to customary confidentiality arrangements with such Persons regarding such information. (i) Notwithstanding anything to the contrary contained ~~herein~~in this Agreement, ~~Parent’s obligations hereunder are not subject~~ nothing contained in this Section 7.11 and Section 7.12 shall require, and in no event shall the reasonable best efforts of Parent or its Subsidiaries be deemed or construed to ~~a condition regarding Parent’s~~ require, Parent or any of its ~~Affiliates’ obtaining funds~~ Subsidiaries to (i) pay any fees in excess of those contemplated in the Debt Commitment Letters (whether to secure waiver of any conditions contained therein or otherwise), (ii) amend or waive any of the terms or conditions hereof or (iii) consummate the ~~Merger and~~ Closing at any time prior to the ~~transactions contemplated by~~ date determined in accordance with Section 2.2; provided that obtaining the Financing is not a condition to the Closing. (j) Notwithstanding anything to the contrary contained in this Agreement., (i) nothing in this Agreement shall require any cooperation by the Company, its Subsidiaries or any of their respective Representatives to the extent that (A) it would require the Company to pay any commitment or other fees, reimburse any expenses or othe

Appears in 2 contracts

Sources: Merger Agreement (KCG Holdings, Inc.), Merger Agreement (Virtu Financial, Inc.)

Financing. (a) ~~Subject~~ Parent shall use reasonable best efforts to: (i) maintain in effect the Commitment Letter and Fee Letter in accordance with their terms; and (ii) satisfy (or, if deemed advisable by Parent, obtain the waiver of) on a timely basis all conditions in the Commitment Letter, Fee Letter and the Definitive Agreements and comply with its obligations thereunder. (b) Unless, and to the ~~terms~~ extent, Parent or Merger Sub have sufficient cash from other sources (including by reason of a capital markets or other financing transaction) available to satisfy their obligations under this Agreement, from and ~~conditions~~ after the execution of this Agreement, Parent shall use its reasonable best efforts to ~~take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and~~ obtain the proceeds of the Debt Financing on the terms and conditions described in the ~~Debt~~ Commitment Letter ~~pursuant to the terms thereof (including any “market flex” provisions)~~ and Fee Letter, including using ~~its~~ reasonable best efforts to: (i) negotiate definitive agreements with respect to ~~seek to enforce its rights under~~ the Debt ~~Commitment Letter~~ Financing (the “Definitive Agreements”) not materially less favorable to Parent and Merger Sub, in the ~~event of a breach thereof by~~ aggregate, than the ~~financing provider(s~~terms and conditions contained therein (including, as necessary, the “flex” provisions contained in the Fee Letter); and (ii) ~~thereunder.~~ consummate the Debt Financing at or prior to the Closing. (c) Parent shall not, without the ~~Company’s~~ prior written ~~consent~~consent of the Company (which shall not be unreasonably withheld, delayed, conditioned or denied), permit any ~~amendment, supplement, replacement~~ amendment or modification ~~to be made~~ to, or any waiver of any provision (including any remedy) under, or voluntarily replace (it being understood that any Alternative Debt Financing shall not be deemed a voluntary replacement for purposes of the ~~Debt~~ sentence), the Commitment Letter or Fee Letter if such amendment, ~~supplement~~modification, ~~replacement, modification~~ or waiver or voluntary replacement (Aw) ~~reduces the aggregate amount of the cash proceeds from the Debt Financing~~ adds new (or (Badversely modifies any existing) ~~imposes new or additional~~ conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full consummation of the Debt Financing ~~(or satisfaction of~~ as compared to those in the ~~conditions to the Debt Financing)~~ Commitment Letter and Fee Letter as in effect on the ~~Closing Date~~date of this Agreement, or (yx) adversely ~~affect~~ affects the ability of Parent to enforce its rights against other parties to the ~~Debt~~ Commitment Letter, Fee Letter or the ~~definitive agreements with respect thereto~~ Definitive Agreements as so amended, replaced, supplemented or otherwise modified, relative to the ability of Parent to enforce its rights against such other parties to the Commitment Letter and Fee Letter as in effect on the date of this Agreement, (~~provided, that Parent may amend~~ y) reduces the aggregate amount of the Debt Financing (unless after giving effect to such reduction, the representation and warranty in Section 5.09(d) shall be true and correct), or (z) would otherwise reasonably be expected to prevent, materially impede or materially delay the Closing; provided that, for the avoidance of doubt, no consent from the Company shall be required for (A) any amendment, replacement, supplement or modification of the Commitment Letter that is limited to ~~add or replace~~ adding lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Commitment Letter as of the date of this Agreement (including in replacement of a Lender), (B) implementation or exercise of any “flex” provisions provided in the Fee Letter as in effect as of the date hereof or (C) any amendment, replacement, supplement or modification to the Commitment Letter, Fee Letter or Definitive Agreements so long as such action would not ~~reasonably~~ be ~~expected to delay or prevent~~ prohibited by the ~~Closing~~foregoing clauses (w) - (z)~~. Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement~~. (bd) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company reasonably informed on a reasonably current basis ~~and in reasonable detail~~ of the status of its efforts to ~~arrange~~ consummate the Debt Financing~~, and, promptly following request by the Company,~~ . Parent shall provide to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware with prompt notice of any ~~breach~~ breach, default, termination or ~~default~~ repudiation (Aor any written notice thereof) by any ~~Financing Source~~ party to any Commitment Letters or the ~~Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case~~ Definitive Agreements of ~~this clause (B), such breach or default~~ which Parent gains knowledge and that would reasonably be expected to ~~affect~~ prevent, materially impede or materially delay the ~~availability~~ Closing. Unless, and to the extent, Parent or Merger Sub have sufficient cash from other sources (including by reason of a capital markets or other financing transaction) available to satisfy their obligations under this Agreement, from and after the ~~Debt Financing or (iii) a counterparty indicates~~ execution of this Agreement, in ~~writing or orally~~ the event that ~~it will not provide, or it refuses to provide, all or~~ any portion of the Debt Financing ~~contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested~~ becomes unavailable (other than as a result of a breach by the Company ~~relating to any circumstances referred to in~~ of this ~~Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without~~ Agreement which prevents or renders impracticable the ~~prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent~~ consummation ~~of all or any portion~~ of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further), Parent ~~shall have~~ will (1) use its reasonable best efforts to obtain alternative debt financing (the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”~~). True~~) from the same or other sources, ~~correct~~ in an amount such that the representation in Section 5.09(d) shall be true and ~~complete copies of each alternative financing commitment in respect of such~~ correct, and which Alternative Debt Financing ~~(each~~does not include any incremental conditionality to the consummation thereof that are more onerous to Parent or the Company, ~~a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely~~ in the ~~case~~ aggregate, than the conditions set forth in the Commitment Letter and Fee Letter in effect as of the ~~fee letter, with only~~ date of this Agreement and (2) promptly notify the ~~fee amounts, pricing, “market flex” provisions~~ Company of such unavailability and ~~other economic terms that do not adversely affect~~ the ~~enforceability, availability or conditionality of, or~~ reason therefor. (e) For purposes of the ~~aggregate amount of proceeds available under, the Debt Financing contained therein redacted~~foregoing Sections 6.10(a) – (d)~~, will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained~~, (i) ~~any reference in this Agreement to~~ the term “~~Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt~~ Commitment Letter” shall be deemed to include any commitment letter (or similar agreement) with respect to any Alternative Debt Financing, (ii) the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to term “~~fee letter~~Fee Letter” shall be deemed to include any fee letter ~~relating~~ (or similar agreement) with respect to any Alternative Debt Financing and (iii) the term “Lenders” shall be deemed to include any lenders providing the Alternative Debt ~~Commitment Letter~~ Financing. Other than for purposes of Section 5.09, the term “Debt Financing” shall be deemed to include any permitted Alternative Debt Financing or any capital markets or other financing transactions intended to or that ~~is not superseded by any New Debt Commitment Letter at the time in question~~ does fund Parent and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, ParentMerger Sub’s obligations ~~hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by~~ under this Agreement.

Appears in 2 contracts

Sources: Merger Agreement (Constant Contact, Inc.), Merger Agreement (Endurance International Group Holdings, Inc.)

Financing. (a) ~~Subject to the terms~~ Each of Parent and ~~conditions of this Agreement, Parent~~ Merger Sub shall use its reasonable best efforts to ~~take~~obtain, or cause to be ~~taken~~obtained, ~~all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain~~ the ~~Debt~~ proceeds of the Financing on the terms and conditions described in the ~~Debt~~ Commitment ~~Letter pursuant to the terms thereof (including any “market flex” provisions)~~ Letters, including using its reasonable best efforts with respect to ~~seek~~ (i) maintaining in effect the Commitment Letters, (ii) negotiating definitive agreements with respect to ~~enforce its rights under~~ the ~~Debt Commitment Letter~~ Financing (the “Definitive Agreements”) consistent with the terms and conditions contained in the Commitment Letters or, if available, on other terms that are acceptable to Parent and would not adversely affect (including with respect to timing) the ability of Parent and its Affiliates to consummate the transactions contemplated herein, and (iii) satisfying on a timely basis all conditions applicable to Parent and its Subsidiaries to obtaining the Financing. In the event that all conditions contained in the Commitment Letters have been satisfied (or upon funding will be satisfied), each of ~~a breach thereof by~~ Parent and Merger Sub shall use its reasonable best efforts to timely cause the ~~financing provider(s~~Lenders and Equity Investors to fund the Financing. (b) ~~thereunder.~~ Parent shall not, without the ~~Company’s~~ prior written ~~consent~~consent of the Special Committee, (i) terminate the Commitment Letters, unless the Commitment Letters are replaced in a manner that would not conflict with the following clause (ii), or (ii) permit any ~~amendment, supplement, replacement~~ amendment or modification ~~to be made~~ to, or any waiver of any material provision or remedy under, ~~the Debt~~ or replace, either Commitment Letter if such amendment, ~~supplement~~modification, ~~replacement~~waiver, ~~modification~~ or ~~waiver~~ replacement (Aw) would (1) add any material new condition to either Financing Commitment (or modify any existing condition in a manner materially adverse to Parent or Merger Sub) or otherwise that would be reasonably expected to materially adversely affect the ability of Parent or Merger Sub to consummate the transactions contemplated by this Agreement or the likelihood of Parent and Merger Sub doing so, or (2) be reasonably expected to make the timely funding of the Financing or satisfaction of the conditions to obtaining the Financing materially less likely to occur, (x) reduces the aggregate amount of the ~~cash proceeds from~~ Financing (including by increasing the ~~Debt Financing or (B) imposes new or additional conditions~~ aggregate amount of fees to ~~the initial funding or otherwise expands any~~ be paid in respect of the ~~conditions to the receipt of the Debt~~ Financing), or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) would materially adversely affect the ability of Parent or any of its Affiliates to enforce its rights against other parties to ~~the Debt~~ either such Commitment Letter or the ~~definitive agreements with respect thereto~~ Definitive Agreements as so amended, replaced, supplemented or otherwise modified, or (~~provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action~~ z) would ~~not~~ reasonably be expected to prevent, impede or materially delay ~~or prevent~~ the ~~Closing). Parent shall promptly deliver to~~ consummation of the ~~Company true, complete~~ Merger and ~~correct copies of any such amendment, modification or replacement~~the other transactions contemplated by this Agreement. (bc) In the event that any portion of the Financing becomes unavailable, regardless of the reason therefor, Parent ~~shall,~~ shall (i) promptly notify the Special Committee of such unavailability and ~~shall cause its Affiliates~~ the reason therefor and ~~Representatives to,~~ (ii) use its reasonable best efforts to obtain as soon as possible following the occurrence of such event, alternative financing (Ain an amount sufficient to replace such unavailable Financing) ~~to maintain in effect~~ from the ~~Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified~~ same or ~~waived as provided in this Section 6.13), (B) to negotiate~~ other sources and ~~enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”)~~ on ~~the~~ terms and conditions ~~that are not materially~~ no less favorable in the aggregate to the Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt unavailable Financing. (d) Parent shall ~~have~~ provide the ~~right to substitute the net cash proceeds received~~ Special Committee with prompt oral and written notice (i) of (x) any material breach or default by ~~Parent after the date hereof and prior~~ any party to the ~~Closing from consummated offerings~~ Commitment Letters or the Definitive Agreements or any termination of the Commitment Letters, (y) the receipt of any written notice or other ~~incurrences~~ written communication to Parent or any of ~~debt~~ its Affiliates from any Lender or Equity Investor, or other financing source with respect to any actual or threatened breach, default, termination or repudiation by any party to the Commitment Letters or the Definitive Agreements or any provision thereof or (~~including notes~~z) by any material dispute or disagreement between or among Parent and any of its Affiliates, on the one hand, and the Lenders and Equity Investors, on the other hand, or, to the Knowledge of Parent, among any Lenders or Equity Investors to the Commitment Letters or the Definitive Agreements with respect to the obligation to fund any of the Financing or the amount of the Financing to be funded at Closing, and (ii) if at any time for any reason Parent or any of its Affiliates believes in good faith that it will not be able to obtain all or any portion of the ~~Debt~~ Financing on the terms and conditions, in the manner or from the sources contemplated by ~~reducing commitments under~~ the ~~Debt~~ Commitment ~~Letter; provided that (v) such offering~~ Letters or ~~other incurrence of debt does not result in~~ the Definitive Agreements. Parent shall keep the Special Committee reasonably informed on a ~~breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount~~ current basis of the ~~Debt Financing committed under~~ status of its efforts to consummate the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, Financing. (xe) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing Notwithstanding anything contained ~~therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference~~ in this Agreement to the contrary, nothing in this Agreement shall (i) confer upon the Company, its stockholders or any of their respective Affiliates any right or cause of action against the Lenders or their current or future Representatives (collectively, the “Lender Related Parties”) or with respect to the Debt ~~Financing” shall include the debt financing contemplated by~~ Financing Commitment, the Debt Commitment Letter ~~as modified pursuant to clause~~ or any other agreement related thereto or (ii) ~~below~~require the Merger Sub, ~~(ii)~~ the Parent or any ~~reference~~ of their Affiliates to bring any legal proceeding against any Lender or Lender Related Party for any reason, including with respect to the Debt Financing Commitment, the Debt Commitment Letter or any other agreement related thereto. Notwithstanding anything contained in this Agreement to the “contrary, the Company, on behalf of itself and its Affiliates and any Person claiming by, through or on behalf of the Company, (x) hereby waives any claims or rights against any Lender or Lender Related Party relating to or arising out of this Agreement, the Debt ~~Commitment Letter” shall be deemed to include~~ Financing Commitment, the Debt Commitment Letter ~~which is~~ and the transactions contemplated hereby and thereby, whether at law or in equity and whether in tort, contract or otherwise, (y) hereby agrees not ~~superseded by a New~~ to bring any legal proceeding against any Lender or Lender Related Party in connection with this Agreement, the Debt ~~Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect~~Financing Commitment, ~~and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to~~ the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated hereby and thereby, whether at law or in equity and whether in tort, contract or otherwise, and (z) hereby agrees to cause any legal proceeding asserted against any Lender or Lender Related Party by any such Person in connection with this Agreement, the Debt Financing Commitment, the Debt Commitment Letter and the transactions contemplated hereby and thereby to be dismissed or otherwise terminated, in each case, solely in their capacity as a Lender or Lender Related Party. In furtherance and not in limitation of the foregoing waivers and agreements, it is acknowledged and agreed that no Lender or Lender Related Party shall have any liability for any claims or damages to Company, its stockholders or any of their respective Affiliates in connection with this Agreement, the Debt Financing Commitment, the Debt Commitment Letter and the transactions contemplated hereby and thereby.

Appears in 1 contract

Sources: Merger Agreement (Arc Document Solutions, Inc.)

Financing. (a) ~~Subject to the terms~~ Each of Parent and ~~conditions of this Agreement, Parent~~ Merger Sub shall use its reasonable best efforts to ~~take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and~~ obtain the ~~Debt~~ proceeds of the Financing on the terms and conditions ~~described in the Debt Commitment Letter pursuant to the terms thereof~~ (including ~~any~~ the “market flex” and “securities demand” and other similar provisions) ~~including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter~~ described in the ~~event of a breach thereof by the financing provider(s) thereunder. Parent~~ Financing Documents, and shall not, without the ~~Company’s~~ prior written ~~consent~~consent of the Company, (i) permit any amendment, ~~supplement, replacement~~ supplement or modification to (it being understood that any Alternative Financing shall not be ~~made~~ deemed an amendment, supplement or modification) to, or any waiver of any provision or remedy under, or replace, the ~~Debt Commitment Letter~~ Financing Documents if such amendment, supplement, ~~replacement~~modification, ~~modification~~ waiver or ~~waiver~~ replacement (A) reduces the aggregate amount of the ~~cash proceeds from~~ Financing (including by changing the amount of fees to be paid in respect of the Debt Financing or original issue discount in respect of the Debt Financing only if such changes would reduce the aggregate amount of the Financing), unless the Debt Financing or the Equity Financing is increased by a corresponding amount, (B) ~~imposes~~ would (1) add new or additional ~~conditions to the initial funding~~ or otherwise ~~expands~~ expand, amend, modify or affect any of the conditions to the ~~receipt of the Debt Financing,~~ Financing or otherwise ~~expands~~expand, ~~amends~~ amend, modify or ~~modifies~~ affect (including with respect to timing) any other provision of the ~~Debt Commitment Letter~~ Financing Documents in a manner that would reasonably be expected to adversely affect the ability or likelihood of Parent or Merger Sub to timely consummate, or prevent, impede or delay consummation of, the Merger and the other transactions contemplated by this Agreement or (x2) be reasonably expected to delay or prevent or make less likely the timely funding ~~in full~~ of the ~~Debt~~ Financing (or timely satisfaction of the conditions to obtaining the ~~Debt~~ Financing~~) on the Closing Date~~), or (yC) adversely ~~affect~~ impacts the ability of Parent or Merger Sub, as applicable, to enforce its rights against any of the other parties to the ~~Debt Commitment Letter~~ Financing Documents or the ~~definitive agreements with respect thereto~~ Definitive Agreements relative to the ability of Parent or Merger Sub, as applicable, to enforce its rights against any of such other parties to the Financing Documents as in effect on the date hereof or (~~provided~~D) would reasonably be expected to prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement; provided that ~~Parent may amend~~ no consent from the Company shall be required for any (x) amendment, replacement, supplement or modification of the Debt Commitment Letter that is limited to ~~add or replace~~ adding lenders, lead arrangers, bookrunners, syndication agents or similar entities ~~so long~~ that have not executed the Debt Commitment Letter as of the date of this Agreement (including in replacement of a Lender) and who are (I) set forth on Section 6.12(a) of the Parent Disclosure Letter, (II) approved in advance by the Company, or (III) a nationally recognized lender or arranger which in the ordinary course finances similar transactions or (y) implementation or exercise of any “market flex” or “securities demand” or other similar provisions provided in the Redacted Fee Letter as in effect on the date hereof, or (ii) terminate any Financing Document, unless a replacement for such ~~action would not reasonably be expected to delay~~ Financing Document consistent with the foregoing clause (i) has been executed and is in full force and effect prior to, or ~~prevent the Closing)~~simultaneously with, such termination. ~~Parent shall promptly deliver to the Company true, complete and correct copies of~~ Upon any such amendment, ~~modification~~ supplement, modification, waiver or ~~replacement~~replacement of the Debt Commitment Letter in accordance with the proviso to this Section 6.12(a), the term “Debt Commitment Letter” shall be the Debt Commitment Letter as so amended, supplemented, modified, waived or replaced. (b) Each of Parent ~~shall,~~ and Merger Sub shall ~~cause its Affiliates and Representatives to,~~ use its reasonable best efforts to (Ai) to maintain in effect the ~~Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)~~Financing Documents, (Bii) to negotiate and enter into definitive agreements with respect to the Debt ~~Commitment Letter~~ Financing (together with the Equity Investment Agreement, the “~~Debt Financing~~ Definitive Agreements”) on the terms and conditions ~~that are not materially less favorable to Parent than those~~ (including, as necessary, the “market flex”, “securities demand” and similar provisions contained in ~~the Debt Commitment Letter~~any related fee letter) contained therein, (Ciii) to satisfy on a timely basis ~~(or obtain~~ all conditions in the ~~waiver of),~~ Financing Documents and ~~in a manner that will not impede~~ the ~~ability of the parties~~ Definitive Agreements applicable to Parent and its Affiliates to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the ~~Closing,~~ Closing and (Div) to comply with its obligations under the ~~Debt Commitment Letter,~~ Financing Documents in a timely and diligent manner (provided that in the case of clauses (iii) and (Eiv) Parent and Merger Sub shall not be deemed to ~~consummate~~ have breached their obligation under such clauses if the ~~Debt Financing at~~ failure to satisfy or ~~prior to~~ comply is the ~~Effective Time~~result of a breach by the Company of its obligations contained in this Section 6.12 which prevents or renders impracticable the consummation of the Financing). In the event that all conditions ~~precedent expressly set forth~~ contained in the ~~Debt Commitment Letter~~ Financing Documents have been ~~or,~~ satisfied (or upon funding ~~of the Debt Financing~~ will ~~be,~~ be satisfied), Parent ~~and Sub~~ shall use ~~their~~ its reasonable best efforts to ~~enforce their rights under, and~~ cause the Financing ~~Sources, lenders~~ Sources and the ~~other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and~~ Equity Provider to fund ~~on or before~~ the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with consummate the transactions contemplated by this Agreement and ~~all conditions precedent~~ to ~~funding of such financing are, in respect of certainty of funding, equivalent~~ pay related fees and expenses at the Closing (including by seeking through litigation to ~~(or more favorable to the Company than) the conditions precedent set forth in~~ enforce its rights under the Debt Commitment Letter, ~~to supplement or replace~~ Equity Investment Agreement and Definitive Agreements, as applicable). In furtherance of and not in limitation of the foregoing, in the event that (A) any portion of the Debt Financing structured as high yield financing is unavailable, regardless of the reason therefor (~~“Alternative Debt Financing”). True, correct and complete copies~~ other than a breach by the Company of ~~each alternative financing commitment in respect~~ this Agreement which prevents or renders impracticable the consummation of ~~such Alternative Debt Financing (each, a “New Debt Commitment Letter”~~the high yield financing), ~~together~~ (B) all closing conditions contained in Section 7.1 and Section 7.3 shall be satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction (or waiver in accordance with ~~all related fee letters and associated engagement letters (solely in~~ this Agreement by the ~~case~~ party having the benefit of the ~~fee letter, with only~~ applicable condition) of all conditions at the ~~fee amounts, pricing, “market flex” provisions~~ Closing) and ~~other economic terms that do not adversely affect~~ (C) the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing bridge facilities contemplated by the Debt Commitment Letter ~~as modified~~ (or alternative bridge facilities obtained in accordance with this Section 6.12(b)) are available on the terms and conditions described in the Debt Commitment Letter (or replacements thereof), then each of Parent and Merger Sub shall cause the proceeds of such bridge financing to be used in lieu of such affected portion of the high yield financing to consummate the Closing when Parent is required to do so pursuant to ~~clause~~ Section 2.2. (c) In the event that any portion of the Financing becomes unavailable, regardless of the reason therefor (other than as the result of a breach by the Company of its obligations contained in this Section 6.12, or a material breach by the Company of its other obligations contained in this Agreement, in each case which prevents or renders impracticable the consummation of the Financing and with respect to which Parent has provided the Company with prior written notice and a reasonable opportunity to cure the effect of such breach on the availability of the Financing), Parent will (i) use its reasonable best efforts to obtain, as promptly as practicable following the occurrence of such event and in any event no later than the last day of the Marketing Period, alternative financing (in an amount sufficient, when taken together with Parent’s cash on hand, any then-available Equity Financing and Debt Financing pursuant to any then-available Financing Documents, to consummate the transactions contemplated by this Agreement and to pay related fees and expenses earned, due and payable as of the Closing Date) from the same or other sources and on terms and conditions no less favorable, in the aggregate, to Parent than such unavailable Financing (including the “market flex”, “securities demand” and other similar provisions contained in any related fee letter) and which do not include any conditions to the consummation of such alternative financing that are more onerous than the conditions set forth in the Financing (the “Alternative Financing”) and (ii) ~~below~~promptly notify the Company of such unavailability and the reason therefor; provided that in no event shall the reasonable best efforts of Parent required by clause (i) be deemed or construed to require Parent to (A) seek any additional Equity Financing above the amount of the Equity Financing or (B) pay any fees in excess of those contemplated by the Financing Documents (but including any “market flex”, “securities demand” or similar provisions in the Redacted Fee Letter). For the purposes of this Agreement, (ii1) ~~any reference in this Agreement to~~ the term “Debt Commitment Letter” or “Equity Investment Agreement,” as applicable, shall be deemed to include any commitment letter (or similar agreement) with respect to any Alternative Financing arranged in compliance herewith (and any Debt Commitment Letter or Equity Investment Agreement, as applicable, remaining in effect at the time in question) and the term “Financing Documents” shall be deemed to include ~~the~~ any Debt Commitment Letter ~~which is not superseded by a New~~ or Equity Investment Agreement with respect to any Alternative Financing arranged in compliance herewith (and any Debt Commitment Letter or Equity Investment Agreement, as applicable, remaining in effect at the time in ~~question and each New Debt Commitment Letter to~~ question), (2) the ~~extent then in effect, and (iii) any reference in this Agreement to~~ term “~~fee letter~~Redacted Fee Letter” shall be deemed to include any fee letter (or similar agreement) with respect to any alternative debt financing arranged in compliance with this Section 6.12, (3) the term “Lenders” shall be deemed to include any lenders providing the alternative debt financing arranged in compliance herewith, (4) the term “Equity Investment Agreement” shall be deemed to include any investment agreement, commitment letter (or similar agreement) with respect to any alternative equity financing arranged in compliance herewith (and any Equity Investment Agreement remaining in effect at the time in question), (5) the term “Equity Provider” shall be deemed to include any Persons providing the alternative equity financing arranged in compliance herewith and (6) the term “Definitive Agreement” shall be deemed to include any definitive agreement with respect to Alternative Financing. (d) Parent shall (i) provide the Company with prompt notice of (A) any breach or default that could reasonably be expected to impair or impede Parent’s ability to obtain the Financing in a timely manner by any party to any Financing Documents or the Definitive Agreements by Parent or with respect to any other party of which Parent gains Knowledge, (B) the receipt of any notice or other communication from any Lender, Equity Provider, or other financing source (or Parent giving any such notice) with respect to any actual or threatened breach, default (or accusation of breach or default), termination or repudiation that could reasonably be expected to impair or impede Parent’s ability to obtain the Financing in a timely manner by any party to any Financing Documents or the Definitive Agreements of any provision thereof or (C) any dispute or disagreement that could reasonably be expected to impair or impede Parent’s ability to obtain the Financing in a timely manner between or among Parent, on the one hand, and the Lenders and/or the Equity Provider on the other hand, or among any Lenders to any of the Financing Documents or the Definitive Agreements, and (ii) keep the Company reasonably informed on a current basis of the status of its efforts to consummate the Financing. (e) Prior to the Closing Date, the Company shall use its reasonable best efforts to provide to Parent and Merger Sub, and shall cause each of its Subsidiaries to use its reasonable best efforts to provide, and shall use its reasonable best efforts to cause its Representatives, including legal and accounting advisers, to provide all cooperation reasonably requested by Parent that is customary in connection with the arrangement of the Financing or any permitted replacement, amended, modified or alternative financing (collectively with the Financing, the “Available Financing,” it being understood that for purposes of this Section 6.12, for the avoidance of doubt, Available Financing shall include any offering of debt securities or incurrence of loans contemplated by the Debt Commitment Letter and any public offering of equity securities of Parent) (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries), which reasonable best efforts shall include (i) (A) furnishing Parent and Merger Sub and their Financing Sources and Equity Provider, as promptly as reasonably practicable following Parent’s request, with such pertinent and customary information (other than financial information, which is covered by clause (ii) below), to the extent reasonably available to the Company, regarding the Company and its Subsidiaries as may be reasonably requested in writing by Parent to consummate the offerings of debt securities contemplated by the Available Financing at the time during the Company’s fiscal year such offerings will be made and (B) furnishing Parent and Merger Sub and their Financing Sources, as promptly as reasonably practicable following Parent’s reasonable written request, with information (other than financial information, which is covered by clause (ii) below) regarding the Company and its Subsidiaries (including information to be used in the preparation of one or more information packages regarding the business, operations, financial projections and prospects of the Company and its Subsidiaries) customary for the arrangement of loans contemplated by the Available Financing (the “Bank Financing”), to the extent reasonably available to the Company and reasonably requested by Parent to assist in the preparation of customary offering or information documents or rating agency or lender presentations relating to such arrangement of loans, (ii) furnishing all financial statements and other financial data and financial information (other than pro-forma financial statements but including, for the avoidance of doubt, any financial information of the Company and its Subsidiaries reasonably necessary to permit the Parent to prepare pro-forma financial statements required under paragraphs (vi) and (ix) of Annex IV to the Debt Commitment Letter (as in effect on the date of this Agreement)) of the Company and its Subsidiaries that is ~~not superseded~~ requested in writing by ~~any New~~ Parent and required under paragraphs (vi) and (ix) of Annex IV to the Debt Commitment Letter at (as in effect on the ~~time~~ date of this Agreement) and, excluding textual descriptions of the Company’s business and financial results (other than what is customarily contained in ~~question~~ the notes to the Company’s financial statements) (the information, financial statements, business and ~~each New Debt Commitment Letter~~ other financial data and financial information referred to in this clause (ii), the “Required Information”), (iii) participating in a reasonable number of meetings (including customary one-on-one meetings with the parties acting as lead arrangers, bookrunners or agents for, and prospective lenders and purchasers of, the Available Financing and senior management, with appropriate seniority and expertise, of the Company), presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies in connection with the Available Financing, (iv) assisting with the preparation of customary materials for rating agency presentations, offering documents, bank information memoranda, and similar documents required in connection with the Available Financing; provided that any rating agency presentations, offering documents, bank information memoranda, and similar documents required in connection with the Available Financing shall contain disclosure reflecting the Surviving Corporation and/or its Subsidiaries as the obligor, (v) using reasonable best efforts to obtain accountant’s comfort letters and specialist legal opinions reasonably requested by Parent; provided that, to the extent ~~then in effect. (e) On the Closing Date~~reasonably practicable, Parent shall ~~provide all funds required~~ cause its counsel to ~~effect the repayment~~ furnish any legal opinions and no opinions of ~~all indebtedness under~~ the Company ~~Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything~~ or its counsel shall be required prior to the ~~contrary contained herein~~Closing, ~~Parent’s obligations hereunder are not subject~~ (vi) providing access and information reasonably requested by Parent to ~~a condition regarding Parent’s~~ allow Parent to undertake inventory appraisals and field audits and obtain surveys and title insurance, (vii) taking all corporate, limited liability, partnership or ~~any~~ other similar actions, including the provision of ~~its Affiliates’ obtaining funds to consummate the Merger~~ guarantees and the ~~transactions contemplated~~ pledging of collateral by ~~this Agreement.~~th

Appears in 1 contract

Sources: Merger Agreement (Saks Inc)

Financing. (a) ~~Subject to the terms and conditions of this Agreement,~~ Parent shall ~~use its reasonable best efforts~~ not agree to ~~take,~~ or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, ~~supplement, replacement~~ supplement or other modification to be made to, or any waiver of any provision or remedy under, the Debt Commitment Letter ~~if such amendment, supplement, replacement, modification~~ or ~~waiver~~ the definitive agreements relating to the Debt Financing that (Ai) reduces the aggregate amount of the ~~cash proceeds from~~ Debt Financing below an amount, together with the amount of any equity financing (including pursuant to the Equity Purchase), required to pay the Required Payment Amount or (ii) (A) imposes new or additional conditions precedent or other terms to the Debt Financing or (B) ~~imposes new~~ otherwise adversely expands, amends or ~~additional conditions to the initial funding or otherwise expands~~ modifies any of the conditions precedent to ~~the receipt of~~ the Debt Financing, or otherwise ~~expands~~expand, amends or modifies any other provision of the Debt Commitment ~~Letter~~ Letter, in the case of clauses (A) and (B), in a manner that would reasonably be expected to (x) ~~delay~~ prevent, impede or ~~prevent~~ materially delay, the ability of Parent to consummate the Closing, (y) make the timely funding ~~in full~~ of the Debt Financing (or the satisfaction of the conditions to obtaining the Debt Financing) ~~on the Closing Date,~~ materially less likely to occur in any respect or (yz) adversely ~~affect~~ impact the ability of Parent to enforce its rights against the other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacementthereto. (b) ~~Parent~~ Prior to the Effective Time, the Company shall, and shall cause its ~~Affiliates and Representatives~~ Subsidiaries to, use commercially reasonable efforts to, at Parent’s sole cost and expense, provide to Parent such cooperation in connection with the Debt Financing (which, for purposes of this Section 8.11(b), shall also include any other financing efforts of Parent), as may be reasonably requested by Parent or its Representatives (unless such cooperation unreasonably interferes with the business operations of the Company and its Subsidiaries), including: (i) furnishing such financial statements and other financial data and other information relating to the Company and its Subsidiaries and requested by Parent or its Representatives as may be reasonably necessary or advisable to consummate the Debt Financing, including financial statements, financial data, projections, audit reports and other information (x) of the type and form required by Regulation S-X and Regulation S-K promulgated under the 1933 Act for a registered public offering of debt securities on Form S-1, (y) of the type and form customarily included in private placements of debt securities under Rule 144A of the 1933 Act, or (z) as otherwise reasonably required in connection with the Debt Financing or as otherwise necessary in order to assist in receiving customary “comfort” (including “negative reassurance” comfort) from independent accountants in connection with offering(s) of debt securities in connection with the Debt Financing; provided that the Company’s sole obligation with respect to the preparation of any pro forma financial information and financial statements for inclusion in any confidential information memorandum, prospectus, offering memorandum or other marketing and syndication materials shall be as set forth in clause (ix) of this Section 8.12(b); (ii) using commercially reasonable ~~best~~ efforts to cause its independent accountants to cooperate with the Financing Sources consistent with their customary practice and obtain customary accountants’ “comfort letters” (including customary “negative assurances”) and customary consents to the inclusion of audit reports in connection with the Debt Financing; (iii) providing information related to the Company and its Subsidiaries reasonably necessary to assist Parent in the preparation of one or more confidential information memoranda, prospectuses, offering memoranda and other marketing and syndication materials reasonably requested by Parent or any of its Affiliates; (iv) providing the reasonable use by Parent and its Affiliates of the Company’s and its Subsidiaries’ logos for syndication and underwriting, as applicable, of financing (subject to advance review of and consultation with respect to such use); provided that such logos are used solely in a manner that is reasonable and customary for such purposes and that is not intended to or reasonably likely to harm or disparage the Company or any of its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries or any of their respective products, services, offering or intellectual property rights; (v) participating in a reasonable and limited number of meetings, presentations and road shows with prospective lenders and investors and in drafting sessions and due diligence sessions, as applicable; (vi) facilitating the pledging of, and granting, recording and perfection of security interests in share certificates, securities and other collateral as reasonably requested by Parent, including executing and delivering any pledge and security documents, other definitive financing documents, or other certificates or documents as may be reasonably requested by Parent (including a certificate of the chief financial officer of the Company or one or more of its Subsidiaries with respect to solvency matters), and obtaining surveys and title insurance as reasonably requested by Parent; (vii) providing information reasonably necessary to assist Parent in its preparation of material relating to the Company and its Subsidiaries for rating agency presentations; (viii) providing at least three Business Days prior to the Closing all documentation and other information about the Company and its Subsidiaries as is required by applicable “know your customer” and anti-money laundering rules and regulations including the USA PATRIOT Act to the extent requested by the Financing Sources at least ten Business Days prior to the anticipated Closing; (ix) providing information reasonably necessary to assist Parent with the preparation of pro forma financial information and financial statements to the extent required by SEC rules and regulations or necessary or reasonably required by the Financing Sources to be included in any offering documents; and (x) obtaining customary payoff letters in connection with repayment of existing indebtedness of the Company and its Subsidiaries reasonably requested by Parent; provided that (1) neither the Company nor any of its Subsidiaries nor any of their respective Affiliates or Representatives shall be required to (A) ~~to maintain~~ pay any commitment or other fees, in ~~effect~~ each case, in connection with the Debt ~~Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)~~Financing, (B) give any indemnities in connection with the Debt Financing, (C) take any action that, in the good faith determination of the Company, would unreasonably interfere with the conduct of the business or the Company and its Subsidiaries or create an unreasonable risk of damage or destruction to ~~negotiate and enter into definitive agreements~~ any property or assets of the Company or any of its Subsidiaries, (D) provide any information the disclosure of which is prohibited or restricted under Applicable Law or subject to legal privilege, (E) take any action that will conflict with or violate its organizational documents or any Applicable Law or would result in a violation or breach of, or default under, any agreement to which the Company or any of its Subsidiaries is a party or (F) execute any agreement, certificate, document or instrument pursuant to this Section 8.12(b) with respect to the Debt ~~Commitment Letter (the “Debt~~ Financing ~~Agreements”)~~ that is not contingent on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D2) the effectiveness of any definitive documentation delivered pursuant to ~~comply~~ this Section 8.12(b) executed by the Company or any of its Subsidiaries with ~~its obligations under~~ respect thereto, and the attachment of any Lien, shall be subject to the consummation of the Closing and the occurrence of the Effective Time, (3) no director, officer or employee of the Company or any Subsidiary of the Company shall be required to execute any agreement, certificate, document or instrument pursuant to this Section 8.12(b) with respect to the Debt ~~Commitment Letter~~Financing, (4) no officer or other Representative of the Company or any of its Subsidiaries that will not continue employment with New Charter or one of its Subsidiaries following the Closing shall be required to deliver any certificate or opinion or take any other action pursuant to this Section 8.12(b) other provisions of this Agreement and (E5) ~~to consummate~~ the ~~Debt Financing at~~ members of the Board of Directors of the Company or any of its Subsidiaries as of immediately prior to the Effective ~~Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the~~ Time shall not be required to approve any Debt Financing or definitive documents related thereto. (c) Parent will ~~be, satisfied, Parent~~ promptly reimburse the Company for all reasonable and ~~Sub shall use their reasonable best efforts to enforce their rights under,~~ documented out-of-pocket costs and ~~cause~~ expenses (including legal fees and expenses) incurred by the ~~Financing Sources, lenders~~ Company and ~~the other persons providing or committing to provide the Debt Financing to comply~~ its Subsidiaries in complying with their ~~obligations under the Debt Commitment Letter and definitive financing agreements and~~ respective covenants pursuant to ~~fund on~~ Section 8.12(b) or ~~before the Effective Time~~ otherwise in connection with the Debt Financing. Parent shall ~~keep~~ indemnify, defend and hold harmless the Company ~~informed on a current basis~~ and ~~in reasonable detail of the status of~~ its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptlySubsidiaries, and each of their respective directors, officers, employees, agents and other Representatives from and against any and all losses, damages, claims, interest, costs, expenses, awards, judgments, penalties and amounts paid in ~~any event within two (2) Business Days~~settlement suffered or incurred, ~~if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason~~directly or indirectly, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the ~~transactions contemplated~~ Debt Financing other than with respect to any information provided or prepared by the Company or its Subsidiaries in connection therewith if such loss, damage or other amount is found by a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of the Company or any of its Subsidiaries. Notwithstanding anything herein to the contrary, Parent hereby acknowledges and agrees that the condition set forth in Section 9.02(a)(i) of this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided as it applies to the Company~~. If commitments~~ ’s obligations under ~~the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence~~Section 8.12(b), ~~the obligations of the Company and its Subsidiaries pursuant to Section 6.14~~ shall ~~no longer~~ be ~~in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of~~ deemed satisfied unless the Debt Financing ~~from the same and/or alternative financing sources so long~~ has not been obtained primarily as ~~the aggregate amount~~ a result of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding Company’s Willful Breach of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”its obligations under Section 8.12(b). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing Notwithstanding anything contained ~~therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference~~ in this Agreement to the ~~“Debt Financing” shall include~~ contrary, each of Parent, New Charter, Merger Sub One and Merger Sub Two acknowledges and agrees that the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which Closing is not ~~superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii)~~ conditioned upon Parent obtaining any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectfinancing. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.

Appears in 1 contract

Sources: Merger Agreement (Charter Communications, Inc. /Mo/)

Financing. (a) ~~Subject~~ Parent shall not permit, without the Company’s prior written consent (not to be unreasonably withheld, conditioned or delayed), any amendment or modification to be made to, or any waiver by Parent of any provision or remedy under, or replace, (i) the Equity Commitment Letter or (ii) the Debt Commitment Letter if, in the case of the Debt Commitment Letter, such amendment, modification, waiver or replacement (x) reduces the amount of the Debt Financing (unless the amount committed under the Equity Commitment Letter is increased by a corresponding amount), (y) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the ~~terms~~ receipt of the Debt Financing in a manner that would reasonably be expected to (A) materially delay or prevent the Closing or (B) materially delay, prevent or otherwise make materially less likely to occur the funding of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) or (z) limits or waives the obligations of any other party under the Debt Commitment Letter and ~~conditions of this Agreement, Parent~~ shall use ~~its~~ reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable ~~or proper~~ to arrange and obtain the Debt Financing on the terms ~~and conditions~~ described in the Debt Commitment Letter ~~pursuant~~ (provided that, notwithstanding anything herein to the ~~terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under~~ contrary, Parent may amend or replace the Debt Commitment Letter ~~in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not,~~ without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter consent to add ~~or replace~~ lenders, lead arrangers, bookrunners, syndication agents or similar entities ~~so long~~ who had not executed a Debt Commitment Letter as ~~such action would not reasonably be expected to delay or prevent~~ of the ~~Closing~~date hereof)~~. Parent shall promptly deliver to the Company true~~, ~~complete and correct copies of any such amendment, modification or replacement. (b) Parent shall, and shall cause its Affiliates and Representatives to, use its~~ including using reasonable best efforts to (Ai) to maintain in full force and effect the Debt Commitment Letter until the earlier of the consummation of the Transactions or the termination of this Agreement in accordance with its terms, (~~provided that~~ ii) satisfy (or obtain a waiver) on a timely basis all conditions and covenants applicable to Parent to obtaining the Debt ~~Commitment Letter may~~ Financing on or before the Closing (other than any condition where the failure to be ~~amended, supplemented, replaced, modified or waived as provided~~ so satisfied is the direct result of the Company’s failure to furnish information described in ~~this~~ Section ~~6.13~~5.13(c) below), (Biii) ~~to negotiate and~~ enter into definitive agreements with respect to thereto on the terms and conditions (including flex provisions) contemplated by the Debt Commitment Letter (and provide copies thereof to the “Company), and (iv) consummate the Debt Financing ~~Agreements”~~in accordance with the terms and conditions of the Debt Commitment Letter at or prior to the Closing; provided, that nothing herein shall obligate Parent or any of its Affiliates to commence litigation against any Debt Financing source that fails to provide its respective portion of the financing under the Debt Commitment Letter. Parent shall give the Company prompt (in no event more than two (2) Business Days) written notice after obtaining actual knowledge: (1) of any breach or default (or any event or circumstance that, with or without notice, lapse of time or both, would reasonably be expected to give rise to any breach or default) by any party to any Financing Commitment or definitive document related to the Financing that is reasonably likely to prevent Parent from obtaining the Financing needed for Closing; (2) of the receipt of any written notice or other written communication from any Person with respect to any actual or potential breach, default, termination, or repudiation by any party to any Financing Commitment or any definitive document related to the Financing or any provisions of the Financing Commitments or any definitive document related to the Financing, which default is reasonably likely to prevent Parent from obtaining the Financing for Closing; and (3) if for any reason Parent believes in good faith that it will not be able to obtain all or any portion of the Financing needed for Closing on substantially the terms contemplated by the Financing Commitments or the definitive documents related to the Financing. Subject to the terms and conditions of this Agreement and the applicable terms and conditions of the Equity Commitment Letter, each of Parent and Merger Sub shall use reasonable best efforts to take (or cause to be taken) all actions, and do (or cause to be done) all things, necessary, proper or advisable to (i) obtain the Equity Financing contemplated by the Equity Commitment Letter, (ii) maintain in effect the Equity Commitment Letter until the earlier of the consummation of the Transactions or the termination of this Agreement in accordance with its terms, (iii) satisfy on a timely basis all conditions applicable to Parent and Merger Sub set forth in the Equity Commitment Letter that are within its control, and (iv) consummate the Equity Financing contemplated by the Equity Commitment Letter. Neither Parent nor Merger Sub shall amend, alter, or waive, or agree to amend, alter or waive (in any case whether by action or inaction), any term of the Equity Commitment Letter without the prior written consent of the Company (not to be unreasonably withheld, delayed or conditioned). Parent shall promptly (and in any event within one (1) Business Day) notify the Company of (x) the expiration or termination (or attempted or purported termination, whether or not valid) of the Equity Commitment Letter, or (y) any refusal by the Sponsor (as defined in the Equity Commitment Letter) to provide (or any stated intent by the Sponsor to refuse to provide) the full financing contemplated by the Equity Commitment Letter. (b) If any portion of the Debt Financing becomes unavailable on the terms and conditions ~~that are not materially~~ contemplated in the Debt Commitment Letter, Parent shall promptly notify the Company and shall use reasonable best efforts to arrange to obtain alternative Debt Financing from alternative debt sources on economic and other material terms no less favorable to Parent than those ~~contained~~ provided in the Debt Commitment ~~Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and~~ Letter which shall be in ~~a manner that will not impede the ability of the parties~~ an amount sufficient to consummate the ~~Merger~~Transactions and which do not, ~~all conditions to receipt~~ without the prior consent of the ~~full amount~~ Company, include any conditions of ~~the Debt Financing at the Closing set forth therein~~ such alternative debt financing that are ~~within its control~~ more onerous than or ~~subject~~ in addition to ~~its influence and, upon satisfaction of~~ the conditions set forth in the Debt Commitment Letter~~, to consummate~~ ) (the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt “Alternative Financing~~. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and~~”), promptly following ~~request by~~ the ~~Company, provide to the Company copies~~ occurrence of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth thereinevent. Parent shall promptly ~~provide any information reasonably requested by~~ deliver to the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation true and complete copies of all or agreements pursuant to which any such alternative source shall have committed to provide Parent with any portion of the Debt Financing~~. (d) Parent shall have the right~~ . For purposes of this Section 5.13, references to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the ~~debt~~ financing contemplated by the Debt Commitment Letter and any commitment letter for any Alternative Financing as permitted by this Section 5.13 to be amended, modified ~~pursuant~~ or replaced and references to ~~clause (ii) below, (ii) any reference in this Agreement to the~~ “Debt Commitment Letter” shall include such documents as permitted by this Section 5.13 to be ~~deemed~~ amended, modified or replaced, in each case from and after such amendment, modification or replacement. As an alternative to obtaining Alternative Financing, Sponsor may, upon giving written notice contemplated by the first sentence of this Section 5.13(b), increase the amount of the Equity Financing by an amount sufficient to replace or reduce the Debt Financing or Alternative Financing that would otherwise be required. Concurrent with any such decision by the Sponsor to increase the Equity Financing, Parent will provide written notice thereof to the Company along with an executed, amended Equity Commitment Letter (amended only to provide such increased Equity Financing amount and other changes relating thereto with the Company’s prior consent (such consent not to be unreasonably withheld, conditioned or delayed)). For purposes of this Agreement, after any election pursuant to the prior sentence, references to “Equity Financing” shall include the increased equity financing contemplated by the prior sentence and references to “Equity Commitment Letter” shall mean Equity Commitment Letter as amended to reflect such increased equity financing. (c) The Company shall, and shall cause its Subsidiaries and its and their respective officers and employees to, use reasonable best efforts to cooperate (and use commercially reasonable efforts to cause the Company’s accountants to reasonably cooperate) in connection with the arrangement and closing of the Financing (or Alternative Financing, as the case may be) as may be reasonably requested by Parent, Sponsor or any Debt Financing source including: (i) participating in a reasonable number of meetings (including customary one-on-one meetings with the Sponsor, Debt Financing sources and any prospective lenders), due diligence sessions, drafting sessions, presentations (including marketing or similar presentations, and lender and other investor presentations), sessions with rating agencies and road shows at mutually agreed upon locations and times; (ii) assisting, to the extent reasonably requested, in preparing offering memoranda, rating agency presentations, private placement memoranda and similar documents as may be reasonably requested by Parent, Sponsor, any Debt Financing source or prospective lender; (iii) using commercially reasonable efforts to: facilitate the pledging of collateral on the Closing Date with respect to any pledge that becomes effective on or after Closing, seek landlord and mortgagee waivers, bailee letters and similar documents necessary to consummate the Debt Financing and take reasonable actions necessary to permit the Debt Financing sources to evaluate the assets of the Company and its Subsidiaries for the purpose of establishing collateral arrangements and obtain from the existing financing sources of the Company and its Subsidiaries such documents and instruments which may be reasonably requested by Parent or any of the Debt Financing sources in connection with the Debt Financing, including customary payoff letters, lien terminations, instruments of termination or discharge to be delivered at Closing providing for the payoff, discharge and termination on the Closing Date of any and all Indebtedness (other than capital leases) of the Company and its Subsidiaries and any and all liens encumbering assets of the Company and its Subsidiaries to be paid off, discharged or terminated on the Closing Date; (iv) promptly providing Parent, Sponsor and its Debt Financing Sources with (A) such financial and other information regarding the Company and its Subsidiaries as may be required under the Debt Commitment Letter ~~which~~ or Equity Commitment Letter and (B) such other information as is ~~not superseded~~ customarily delivered by a ~~New~~ borrower for inclusion in a customary confidential information memorandum for financing of the same type as the Debt ~~Commitment Letter at~~ Financing; (v) using commercially reasonable efforts to: assist in the ~~time in question and each New Debt Commitment Letter to the extent then in effect~~preparation of, and ~~(iii)~~ execute and deliver, definitive financing documents, including any ~~reference in this Agreement to “fee letter” shall~~ guarantee and collateral documents and other certificates and documents as may be ~~deemed to include any fee letter relating to~~ contemplated by the Debt Commitment Letter ~~that is not superseded by any New~~ or the Debt ~~Commitment Letter at the time in question~~ Financing documents, and ~~each New Debt Commitment Letter~~ making available officers and other employees (with appropriate seniority), to the extent ~~then~~ reasonably requested, to assist in ~~effect.~~ the negotiation of any such other documents; (evi) On at least five (5) days prior to the Closing Date, to provide documentation and other information about the Company and its Subsidiaries as is reasonably requested in writing by Parent or any Debt Financing source at least ten (10) days prior to the Closing Date in connection with the Debt Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations including the USA PATRIOT Act (provided, however, if any such information is requested within 10 days of the Closing, the Company shall promptly provide such requested information to Parent and any applicable Debt Financing source and shall use reasonable best efforts to provide such requested information prior to Closing). The Company and its Subsidiaries shall use reasonable best efforts to supplement reasonably promptly the information provided pursuant to this Section 5.13(c) to the extent that any such information, to the actual knowledge of any of the Company or its Subsidiaries, contains any material misstatement of fact or omits to state any material fact necessary to make such information not misleading in any material respect. The Company hereby consents to the use of all ~~funds~~ of the Company’s and its Subsidiaries logos in connection with the Debt Financing or Equity Financing; provided that such logos are not used in a manner that is intended to or is reasonably likely to harm or disparage the Company or the reputation or goodwill of the Company. Neither the Company nor any of its Subsidiaries shall be required to ~~effect~~ make any representation or warranty in connection with the ~~repayment of all indebtedness under~~ Debt Financing prior to the Closing Date. Notwithstanding any other provision set forth herein, Parent may share non-public or confidential information regarding the Company ~~Credit Agreement in full in accordance~~ and its Subsidiaries and their respective businesses with the ~~Company Credit Agreement~~Debt Financing sources, and that such Debt Financing sources may share such information with potential financing sources in connection with any marketing efforts (including any syndication) in connection with the Debt Financing, subject to ~~compliance with Section 6.14(a)(iii). (f) Notwithstanding anything~~ the terms of the Original Confidentiality Agreement or other confidentiality protections reasonably acceptable to the ~~contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s~~ Company. Any offering memorandum or other similar offering materials that includes any information provided by or on behalf of the Company or any of its ~~Affiliates’ obtaining funds~~ Affiliates or includes any Company logo shall include a conspicuous disclaimer to ~~consummate~~ the effect that neither the Company nor any of its Affiliates (other than the Company and its Subsidiaries after the Closing Date), nor any employees, officers, directors, managers or agents thereof (other than in their capacity as such after the Closing Date), have any responsibility for the content of such offering memorandum or other similar offering materials and disclaim all responsibility therefor and shall further include such a disclaimer in any oral disclosure with respect to such financing activities. (d) In no event shall the Company or any of its Subsidiaries be required to pay any commitment or similar fee or incur any liability or expense in connection with assisting Parent or Merger ~~and~~ Sub in arranging the ~~transactions contemplated~~ Financing, as a result of any information provided by the Company, any of its Subsidiaries, or any of their respective Affiliates or representatives in connection therewith, or any of the other actions described in this ~~Agreement~~Section 5.13 that are not contingent on the Closing or that would be effective prior to the Closing Date.

Appears in 1 contract

Sources: Merger Agreement (Alteva, Inc.)

Financing. (a) ~~Subject to the terms and conditions of this Agreement,~~ Parent shall use its commercially reasonable ~~best~~ efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable ~~or proper~~ to arrange and obtain the ~~Debt~~ Equity Financing on the terms and conditions ~~described~~ set forth in the ~~Debt~~ Equity Commitment ~~Letter pursuant to the terms thereof (including any “market flex” provisions)~~ Letters, including using its commercially reasonable ~~best~~ efforts to ~~seek~~ (i) maintain in effect the Equity Commitment Letters until the Merger and the other transactions contemplated by this Agreement are consummated, (ii) satisfy or cause to ~~enforce its rights under the Debt Commitment Letter~~ be waived on a timely basis all conditions applicable to Parent set forth in the ~~event~~ Equity Commitment Letters or such definitive agreements that are within its control and otherwise comply with its obligations thereunder and (iii) upon the satisfaction or waiver of ~~a breach thereof by~~ such conditions, consummate the Equity Financing to the extent, and in the amount required, necessary to consummate the Merger and the Transactions; provided, that nothing herein shall prevent Parent from replacing all or any portion of the Equity Financing provided for in the Equity Commitment Letters with one or more commitments from Persons to provide an equal or greater amount of financing ~~provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification~~ to be made toavailable on or prior to the Closing Date with conditionality no less favorable to Parent in any material respect than that provided for in the Equity Commitment Letters, and upon any such replacement, the definition of "Equity Commitment Letters" set forth in this Agreement shall be deemed to have been modified as appropriate to reflect such replacement debt or equity financing and any related commitment letter. (b) Parent shall not amend, modify or waive, or agree to amend, modify or waive (in any ~~waiver~~ case, whether by action or inaction), any term of ~~any provision under, the Debt~~ either Equity Commitment Letter without the prior written consent of the Company if such amendment~~, supplement, replacement~~, modification or waiver (Ai) reduces the aggregate amount of the ~~cash proceeds from~~ Equity Financing available on the ~~Debt Financing~~ Closing Date to pay the aggregate Merger Consideration, the aggregate Conversion Amount, the aggregate Warrant Consideration and the aggregate Black-Scholes Value (unless, in the case of this clause (i), such amount is fully replaced with an amount of new financing with conditionality no less favorable to Parent in any material respect), or (Bii) imposes new or additional conditions ~~to the initial funding~~ or ~~otherwise expands~~ amends or modifies any of the conditions precedent to the receipt of the ~~Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter~~ Equity Financing in a manner that would reasonably be expected to (x) materially delay or prevent the Closing, (y) make the timely funding ~~in full~~ of the ~~Debt~~ Equity Financing (or satisfaction of the conditions precedent to obtaining the ~~Debt Financing) on the Closing Date,~~ Equity Financing less likely to occur or (yz) adversely ~~affect~~ impact the ability of Parent to enforce its rights against any other ~~parties~~ party to the ~~Debt~~ Equity Commitment ~~Letter~~ Letters or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of in any ~~such amendment, modification or replacement~~material respect. (bc) ~~Parent shall~~From the date of this Agreement until the earlier of (x) the Effective Time and (y) the termination of this Agreement in accordance with its terms, the Company agrees to use its commercially reasonable efforts to provide such assistance and ~~shall~~ to cause each of its ~~Affiliates~~ Subsidiaries and Representatives toto provide such assistance, ~~use~~ in connection with any equity or debt financing to be undertaken by Parent, Merger Sub or their affiliates for the purpose of funding the Transactions and the related fees and expenses (the "Financing") as is reasonably requested by Parent. Such assistance shall include the following: (i) reasonable cooperation with the marketing by Parent and its ~~reasonable best efforts~~ Financing Sources of the Financing; (ii) delivery to Parent and its Financing Sources of (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements information with respect to the ~~Debt Commitment Letter~~ business, operations, financial condition, projections and prospects of the Company and its Subsidiaries as may be reasonably requested by Parent or its Financing Sources; and (B) customary certificates, evidence of insurance, authorization letters in connection with the ~~“Debt Financing Agreements”~~marketing materials for the financing, agreements and other documents and materials by the Company and its Subsidiaries and their respective Representatives; (iii) on participation by senior management of the ~~terms and conditions that are not materially less favorable to Parent than those contained~~ Company in the ~~Debt Commitment Letter~~negotiation of, and the execution and delivery of, the agreements, documents and certificates contemplated by the Financing, including (A) officer, secretary, solvency and perfection certificates, corporate organizational documents, good standing certificates, Lien searches, and resolutions requested by Parent or its Financing Sources; (B) documents reasonably requested by Parent or its Financing Sources relating to the repayment of existing debt; and (C) other customary documentation and other information; (iv) taking such actions as are reasonably requested by Parent or its Financing Sources to ~~satisfy~~ facilitate the satisfaction on a timely basis of all conditions precedent to obtaining the Financing; (v) taking all actions as may be reasonably requested by Parent or its Financing Sources in connection with the repayment of the existing indebtedness of the Company and its Subsidiaries; (vi) using its commercially reasonable efforts to cause its independent auditors to cooperate with the Financing, including by (A) providing assistance with the due diligence activities of the Financing Sources and (B) providing access to work papers of the Company and its Subsidiaries and other supporting documents as may be reasonably requested by Parent or its Financing Sources; (vii) obtain ~~the waiver of)~~accountants' comfort letters, legal opinions, and other documentation and items relating to the Financing as reasonably requested by Parent (including by assisting Parent's legal counsel in ~~a manner that will not impede the ability~~ connection with obtaining or preparing any of the ~~parties~~ foregoing); (viii) using its commercially reasonable efforts to ~~consummate~~ provide to Parent all documentation and other information required by Regulatory Authorities or requested by the ~~Merger~~Financing Sources under applicable "know your customer" and anti-money laundering rules and regulations, ~~all conditions to receipt of~~ including the ~~full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and~~PATRIOT Act, ~~upon satisfaction of the conditions set forth~~ in ~~the Debt Commitment Letter~~each case, to ~~consummate~~ the ~~Debt Financing~~ extent requested in writing at or least ten (10) Business Days prior to the ~~Closing, (D) to comply with its obligations under the Debt Commitment Letter,~~ Closing Date; and (Evix) cooperation with Parent's Financing Sources' due diligence, to ~~consummate~~ the ~~Debt~~ extent customary or reasonable; provided, that nothing herein shall require such cooperation to the extent it would interfere unreasonably with the business or operations of the Company or its Subsidiaries; provided, further, that nothing in this Agreement shall require any cooperation to the extent it would (1) require the Company, its Subsidiaries or the Company Board or the board of directors of any of the Company's Subsidiaries to waive or amend any terms of this Agreement or agree to pay any commitment, financing or other fees or reimburse any expenses prior to the Closing Date, except to the extent reimbursed by Parent; (2) require any officer of the Company or its Subsidiaries to execute or deliver any document or certificate in connection with the Financing at that is not contingent upon the Closing or that would be effective prior to the Closing (other than customary documents or certificates solely relating to the Company or its Subsidiaries); (3) require the Company or its Subsidiaries to take any action that would conflict with or violate any applicable Laws or any provision of the organizational documents of the Company, or that would result in a violation or breach of, or default under, any Material Contract in effect as of the date of any such request; or (4) result in any officer or director of the Company or its Subsidiaries incurring any personal liability in connection with the Financing; and provided, further, that neither the Company nor any of its Subsidiaries shall be required to incur any indebtedness, grant any Lien to secure indebtedness of Merger Sub or Parent, or pay any commitment fee or other fee or payment to obtain consent or incur any liability with respect to the Financing prior to the Effective Time~~. In~~ , unless Parent has agreed in writing to reimburse and indemnify the Company for any such liabilities in the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time does not occur. The Company will provide to Parent and its Financing Sources such information as may be necessary so that the ~~Debt Financing. Parent shall keep~~ information supplied by or on behalf of the Company ~~informed on~~ and its Subsidiaries does not and will not contain any untrue statement of a ~~current basis and~~ material fact or omit to state a material fact necessary to make the statements contained therein, in ~~reasonable detail~~ the light of the ~~status~~ circumstances under which such statements are made, not misleading and will correct any such untrue statements or omissions promptly after any of ~~its efforts to arrange the Debt Financing, and, promptly following request by~~ the Company, ~~provide~~ its Subsidiaries or their respective Representatives is aware of such untrue statement or omission. The Company consents to the ~~Company copies~~ use of all ~~executed Debt Financing Agreements. (c) Without limiting~~ of its and its Subsidiaries' logos in connection with the ~~foregoing~~Financing. Notwithstanding anything to the contrary contained in this Agreement, ~~Parent agrees to notify~~ no obligation of the Company ~~promptly~~or its Subsidiaries under any certificate, document or instrument entered into with respect to this Section 5.16(c) shall be effective until the Closing and in the Company and its Subsidiaries shall not be required to take any ~~event within two (2) Business Days~~action under any certificate, ~~if at any time~~ document or instrument that is not contingent upon the Closing or that would be effective prior to the Closing ~~Date~~ (~~i) the Debt Commitment Letter is terminated for any reason~~other than, ~~(ii) Parent becomes aware of any breach~~ in each case, customary documents or ~~default (A) by any Financing Source party~~ certificates solely relating to the ~~Debt Commitment Letter~~ Company or its Subsidiaries). Parent shall indemnify, defend and hold harmless the Company and its affiliates, and their respective pre-Closing Representatives, from and against any liability, obligation or loss suffered or incurred by them in connection with the arrangement of the Financing, any information provided in connection therewith (other than arising from information provided by the Company or its Subsidiaries but including any violation of the Confidentiality Agreement) and any misuse of the logos or marks of the Company or its Subsidiaries in connection therewith, except in the event such liabilities, obligations or losses arose out of or result from the willful misconduct of the Company, any of its Subsidiaries or any ~~Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case~~ of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth thereintheir respective Representatives. Parent shall promptly ~~provide any information reasonably requested by~~ reimburse the Company ~~relating to~~ for any ~~circumstances referred to~~ out-of-pocket costs and expenses incurred in ~~this Section 6.13(c). Parent shall not~~connection with the Company's, ~~nor shall it permit~~ any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all Subsidiaries' or any ~~portion~~ of ~~the Debt Financing~~their respective Representatives' obligations under this Section 5.16. (d) Parent acknowledges and agrees that obtaining the Financing shall ~~have the right to substitute the net cash proceeds received by Parent after the date hereof and prior~~ not be a condition to the ~~Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion~~ consummation of the ~~Debt Financing by reducing commitments under~~ Transactions, and affirms its obligations to consummate the ~~Debt Commitment Letter; provided that~~ Transactions (vsubject to the conditions contained in ARTICLE VI) ~~such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount~~ irrespective and independently of the ~~Debt Financing committed under the Debt Commitment Letter following~~ availability of any such ~~reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by~~ Financing. For purposes of this Agreement, ~~(x)~~ the ~~proceeds~~ term "Financing Source" means each Equity Financer and any future source of ~~such~~ equity or debt ~~offerings~~ financing, if any, that may provide financing to Parent or ~~other incurrences have been received by Parent in cash, (y) Parent promptly notifies~~ Merger Sub for the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectTransactions. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.

Appears in 1 contract

Sources: Merger Agreement (Fibrocell Science, Inc.)

Appears in 1 contract

Sources: Merger Agreement (TPC Group Inc.)

Financing. (a) (i) Subject to the terms and conditions of this Agreement, and except to the extent that Parent has completed an offering of debt securities or another financing the net cash proceeds of which replace amounts that were to be provided under the Commitment Letter, Parent shall use its reasonable best efforts to ~~take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and~~ obtain the ~~Debt~~ Financing on the terms and conditions (including the flex provisions) described in the ~~Debt~~ Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent Letter, and shall ~~not, without the Company’s prior written consent,~~ not permit any ~~amendment, supplement, replacement~~ amendment or modification to be made to, or any waiver of any provision under, the ~~Debt~~ Commitment Letter if such amendment~~, supplement, replacement~~, modification or waiver (A) with respect to the Commitment Letter, reduces (or could have the effect of reducing) the aggregate amount of the ~~cash proceeds from~~ Financing (including by increasing the ~~Debt~~ amount of fees to be paid or original issue discount unless the Financing is increased by a corresponding amount or the Financing is otherwise made available to fund such fees or original issue discount), or (B) imposes new or additional conditions ~~to the initial funding~~ or otherwise ~~expands~~ expands, amends or modifies any of the conditions to the ~~receipt of the Debt~~ Financing, or otherwise expands, amends or modifies any other provision of the ~~Debt~~ Commitment ~~Letter~~ Letter, in a manner that would reasonably be expected to (x) ~~delay or prevent~~ materially adversely affect the ~~funding in full~~ ability of Parent to fund its obligations at the ~~Debt Financing (or satisfaction of the conditions to the Debt Financing) on~~ Offer Acceptance Time and the Closing ~~Date,~~ Date or (y) adversely ~~affect~~ impact the ability of Parent to enforce its rights against the other parties to the ~~Debt~~ Commitment Letter or the definitive agreements with respect ~~thereto~~ thereto, in each of clauses (~~provided~~x) and (y) in any material respect (provided that, ~~that~~ subject to compliance with the other provisions of this Section 6.14, Parent may amend the ~~Debt~~ Commitment Letter to add ~~or replace~~ additional lenders, ~~lead~~ arrangers, ~~bookrunners, syndication~~ bookrunners and agents or ~~similar entities so long as such action~~ in a manner that would not ~~reasonably be expected~~ materially adversely affect the ability of Parent to ~~delay or prevent~~ fund its obligations at the ~~Closing~~Offer Acceptance Time and the Closing Date). Parent shall promptly deliver to the Company ~~true, complete and correct~~ copies of any such amendment, modification or replacement. For purposes of this Section 6.14, references to “Financing” shall include the financing contemplated by the Commitment Letter as permitted to be amended, modified or replaced by this Section 6.14(a) and references to “Commitment Letter” shall include such documents as permitted to be amended, modified or replaced by this Section 6.14(a). (b) Except to the extent that Parent ~~shall~~has completed an offering of debt securities or another financing the net cash proceeds of which replace amounts that were to be provided under the Commitment Letter, ~~and~~ Parent shall ~~cause its Affiliates and Representatives to,~~ use its reasonable best efforts (A) to maintain in effect the ~~Debt~~ Commitment ~~Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)~~Letter, (B) to negotiate and enter into definitive agreements with respect to the ~~Debt~~ Commitment Letter ~~(the “Debt Financing Agreements”)~~ on the terms and conditions ~~that are not materially less favorable to Parent than those~~ (including the flex provisions) contained in the ~~Debt~~ Commitment ~~Letter~~Letter (or on other terms that do not materially impair the ability of Parent to fund its obligations at the Offer Acceptance Time and the Closing Date) (which with respect to the bridge facilities documentation shall not be required until reasonably necessary in connection with the funding of the Financing), (C) to satisfy on a timely basis ~~(or obtain~~ all conditions to funding in the ~~waiver of),~~ Commitment Letter and ~~in a manner that will not impede the ability of the parties~~ such definitive agreements thereto and to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Offer Acceptance Time and the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Financing at the Offer Acceptance Time and on the Closing, as applicable (the “Financing Sources”), (D) to enforce its rights under the Commitment Letter and (E) to comply with its obligations under the ~~Debt~~ Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company reasonably informed ~~on a current basis and in reasonable detail~~ of the status of its efforts to arrange the ~~Debt Financing, and, promptly following request by the Company,~~ Financing and provide to the Company copies of ~~all~~ the executed ~~Debt Financing Agreements. (c)~~ material definitive agreements for the Financing. Without limiting the generality of the foregoing, Parent ~~agrees to notify~~ and Purchaser shall give the Company ~~promptly~~prompt notice (x) of any material breach or material default by any party to any of the Commitment Letter or definitive agreements related to the Financing of which Parent or Purchaser become aware, (y) of the receipt of (A) any written notice or (B) other written communication, in each case from any Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to any of the Commitment Letter or definitive agreements related to the Financing of any provisions of the Commitment Letter or definitive agreements related to the Financing and (z) if at any time for any reason Parent or Purchaser believes in good faith that it will not be able to obtain all or any portion of the Financing on the terms and conditions, in the manner or from the Financing Sources contemplated by any of the Commitment Letter or definitive agreements related to the Financing. As soon as reasonably practicable, but in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability business days of the ~~Debt Financing~~ date the Company delivers to Parent or ~~(iii)~~ Purchaser a ~~counterparty indicates in writing or orally that it will not provide~~written request, ~~or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein.~~ Parent and Purchaser shall ~~promptly~~ provide any information reasonably requested by the Company relating to any ~~circumstances~~ circumstance referred to in ~~this Section 6.13(c~~clause (x)~~. Parent shall not~~, ~~nor shall it permit any of its Affiliates to, without the prior written consent~~ (y) or (z) of the ~~Company~~immediately preceding sentence; provided, ~~take~~ that Parent and Purchaser need not provide any ~~action~~ information believed to be privileged. Upon the occurrence of any circumstance referred to in clause (x), (y)(A) or ~~enter into any transaction that would reasonably be expected to materially impair, delay~~ (z) of the second preceding sentence or ~~prevent consummation of all or~~ if any portion of the ~~Debt~~ Financing otherwise becomes unavailable, and such portion is reasonably required to fund consummation of the Transactions (including without limitation the aggregate Offer Price at the Offer Acceptance Time or the aggregate Merger Consideration on the Closing Date and all fees, expenses and other amounts contemplated to be paid by Parent and Purchaser pursuant to this Agreement), Parent and Purchaser shall use their reasonable best efforts to arrange and obtain in replacement thereof alternative financing from alternative sources in an amount sufficient to fund consummation of the Transactions with terms and conditions not materially less favorable to Parent and Purchaser (or their Affiliates) than the terms and conditions set forth in the Commitment Letter as promptly as reasonably practicable following the occurrence of such event. Parent shall deliver to the Company true and complete copies of all agreements, arrangements or understandings (including and side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any portion of the Financing. (dc) ~~Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior~~ Prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation ofEffective Time, the ~~Debt Commitment Letter~~Company shall, ~~(w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction~~and shall cause its Subsidiaries to, ~~together~~ use their respective commercially reasonable efforts to cooperate with ~~other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid~~ Parent in connection with the ~~transactions contemplated~~ Financing or another financing. Without limiting the generality of the foregoing, upon reasonable request by ~~this Agreement~~Parent, the Company shall, and shall cause its Subsidiaries to use their respective commercially reasonable efforts to (xa) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero extent reasonably necessary in connection with the ~~preceding sentence~~Financing, make senior officers of the Company available to attend reasonable number of meetings (A) with prospective lenders, investors and ratings agencies, (B) in connection with a “roadshow”, (C) in connection with customary due diligence sessions and drafting sessions and sessions with ratings agencies, at such times as coordinated reasonably in advance thereof, (b) assist Parent with the preparation of customary materials for rating agency presentations, road-show presentations, offering documents, private placement memoranda, bank information memoranda and similar documents (to the extent such customary materials contain disclosure reflecting or referring to the Company and its Subsidiaries) reasonably necessary or advisable in connection with the Financing, (c) furnish in a timely fashion the Company’s most recently completed audited financial statements, the ~~obligations~~ Company’s interim financial statements for the Company’s current fiscal year and all other information regarding the Company and its Subsidiaries reasonably required for the Parent to prepare pro forma financial statements and other pro forma financial data that would be (A) required to be included in a registration statement on Form S-3 for a registered public offering of debt securities, (B) customarily included in private placements of debt securities under Rule 144A (with the understanding that financial statements or footnotes pursuant to Rule 3-09, 3-10 or 3-16 under Regulation S-X are not customarily provided in private placements of debt securities under Rule 144A), and (C) customarily included in bank information memoranda for the syndication of term loan and bridge loan commitments contemplated under the Commitment Letter (collectively, the “Company Financing Information”), in each case, only to the extent that the Financing is pursuant to a registered offering, a private placement of debt securities under Rule 144A or a syndication of a term loan and bridge loan commitment, as the case may be; provided that with respect to the foregoing clauses (A) through (C), no such financial statements or other information are required to be provided with respect to any of the Company or its Subsidiaries on an unconsolidated basis; (d) assist with the preparation of definitive financing documents and provide the financial institutions that have committed to provide the Financing (the “Financing Sources”) with reasonable access to the properties, books and records of the Company and its Subsidiaries ~~pursuant~~ during normal working hours (to ~~Section 6.14 shall no longer be~~ the extent practicable) and upon reasonable notice, (e) cause its independent registered public accounting firm to (A) consent to SEC filings and offering memoranda that include or incorporate the Company’s consolidated financial information and their reports thereon, in ~~effect. Further~~each case, to the extent such consent is required, (B) deliver to Parent ~~shall have the right to substitute commitments in respect~~ and Parent’s board of ~~other financings for all or~~ directors and any ~~portion~~ underwriter of the ~~Debt~~ Financing ~~from~~ a customary auditor “comfort letter” to the ~~same and/or alternative financing sources so long as~~ extent such Financing constitutes a registered or 144A offering of debt securities, (C) reasonable assistance in the ~~aggregate amount~~ preparation of pro forma financial statements by the ~~Debt Financing, together with other cash~~ Parent and ~~cash equivalents available~~ (D) provide reasonable assistance and cooperation to Parent, ~~is sufficient~~ including attending customary accounting due diligence sessions, (f) only to ~~pay all amounts~~ the extent required ~~to be paid~~ in connection with the ~~transactions contemplated~~ Financing, to permit Parent to display the logos of the Acquired Corporation in a format approved by ~~this Agreement~~ the Company in materials distributed in connection with the Financing, provided, that Parent and its Affiliates comply with all reasonable instructions of the Company with respect to such display and ceases any and all ~~conditions precedent~~ such use by the Effective Time or the date of termination of this Agreement, (g) reasonably cooperate with the Parent and the Financing Source or any of their respective agents and counsel with respect to ~~funding of such financing are~~their due diligence, including by giving access to documentation reasonably and customarily requested by persons in ~~respect of certainty of funding~~connection with capital markets transactions, ~~equivalent to~~ (~~or more favorable to~~ h) ensure that the ~~Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct~~ marketing and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case syndication of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing ~~contained therein redacted), will be promptly provided to~~ benefits from the Company~~. In the event any New Debt Commitment Letter is obtained,~~ ’s commercial banking relationships and (i) ~~any reference~~ provide reasonable assistance in ~~this Agreement~~ the preparation of and executing and delivering (or using commercially reasonable efforts to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectobtain from its advisors), and causing its Subsidiaries to execute and deliver (~~iii) any reference in this Agreement~~ or use commercially reasonable efforts to ~~“fee letter” shall be deemed to include any fee letter~~ obtain from their advisors), customary certificates, legal opinions and other documents and instruments relating to the ~~Debt Commitment Letter~~ Financing as may be reasonably requested by Parent as necessary and customary in connection with the Financing; provided, that is the actions contemplated in the first sentence of this Section 6.14(c) and the foregoing clauses (a) through (i) do not ~~superseded by any New Debt Commitment Letter at~~ (A) unreasonably interfere with the ~~time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment~~ operations of ~~all indebtedness under~~ the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its ~~Affiliates’ obtaining funds~~ Subsidiaries, (B) require the Company or any of its Subsidiaries to ~~consummate~~ pay any out-of-pocket fees or expenses prior to Closing Date that are not promptly reimbursed by Parent, or (C) require the ~~Merger and~~ Company or any of its Subsidiaries to incur any other liability or obligation in connection with the ~~transactions contemplated by this Agreement~~Financing or otherwise.

Appears in 1 contract

Sources: Merger Agreement (Onyx Pharmaceuticals Inc)

Financing. ‌ (a) Subject to the terms and conditions of this ~~Agreement~~Agreement (including Section 4.12), ~~Parent~~ Investor shall use its reasonable best efforts to ~~take, or cause~~ arrange for the Company to ~~be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and~~ obtain the proceeds of the Debt Financing on the terms and conditions (including the “flex” provisions) described in the Debt Financing Commitment ~~Letter pursuant to~~ and the ~~terms thereof (including any “market flex” provisions)~~ Fee Letter, including using its reasonable best efforts to ~~seek to enforce its rights under the Debt Commitment Letter~~ (i) except as otherwise permitted by this Section 4.11(a), maintain in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from effect the Debt Financing ~~or (B) imposes new or additional conditions~~ Commitment in accordance with the terms and subject to the ~~initial funding or otherwise expands any~~ conditions thereof, (ii) assist in the satisfaction on a timely basis (giving effect to the anticipated timing of the Marketing Period) of all conditions applicable to the ~~receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter~~ Company in ~~a manner that would reasonably be expected to (x) delay or prevent the funding in full of~~ obtaining the Debt Financing at the Closing set forth therein (including consummating the Equity Financing on the terms set forth in the Equity Financing Commitment at or ~~satisfaction~~ prior to Closing), and (iii) negotiate definitive agreements with respect to the Debt Financing on the terms and conditions (including the “flex” provisions) contemplated by the Debt Financing Commitment and the Fee Letter (provided that, upon request by ITW, Investor shall provide copies thereof to ITW on a current basis and consider in good faith any changes or comments thereto proposed by ITW and otherwise keep ITW reasonably informed on a current basis of the ~~conditions~~ status of its efforts to arrange the Debt Financing and afford ITW and the Company reasonable opportunity to attend and participate in any scheduled meetings or negotiations relating to the Debt Financing~~) on the Closing Date~~). Investor shall not, and shall not agree with Guarantor to, enter into any amendment, supplement or other modification of, or ~~(y) adversely affect the ability~~ waive any of ~~Parent to enforce~~ its rights ~~against other parties to~~ under, the Equity Financing Commitment. Investor may, without the consent of ITW, (x) amend, replace or modify the Debt Financing Commitment ~~Letter or~~ and the ~~definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment~~ Fee Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities ~~so long as such action would~~ or (y) otherwise amend, replace or modify, or consent to any waiver of any provision or remedy under, the Debt Financing Commitment, except for any amendment, replacement, modification, consent or waiver set forth in Schedule 4.11, each of which shall require the prior written consent of ITW, which, upon request, shall be promptly given or denied. For the avoidance of doubt, nothing contained herein shall prevent Investor from or reducing the total amount of funds available under the Debt Financing, provided that, in either case, the representations and warranties set forth in the last sentence of Section 3.6 remain true and correct. Investor shall obtain the Equity Financing contemplated by the Equity Financing Commitment upon satisfaction or waiver of the conditions to closing in Section 6.2 (other than those conditions that by their nature will not ~~reasonably~~ be ~~expected~~ satisfied until the Closing and subject to ~~delay or prevent~~ and in accordance with the ~~Closing~~terms of the Equity Financing Commitment). ~~Parent~~ Subject to the terms and conditions of this Agreement (including Section 4.12), in the event any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Financing Commitment, Investor shall promptly ~~deliver~~ notify ITW and shall use its reasonable best efforts to arrange for alternative financing from alternative sources (1) in an amount such that the aggregate funds that would be available to the Company ~~true~~at the Closing will be sufficient to perform its obligations hereunder, (2) with conditions to closing and funding which are not, when taken as a whole, more onerous than those in the Debt Financing Commitment, and (3) which shall not (subject to clause (y) of the second sentence of this Section 4.11) include terms that would require ITW’s consent pursuant clause (y) of the second sentence of this Section 4.11. Investor shall promptly (upon reasonable request by ITW) deliver to ITW true and complete ~~and correct~~ copies of all drafts of any alternative financing commitments (and consider in good faith any changes or comments thereto reasonably proposed by ITW) and all final agreements pursuant to which any such alternative source shall have committed to provide Investor with any portion of the Debt Financing. For purposes of this Section 4.11, Section 3.6 and Section 4.12, references to “Debt Financing” shall include the financing contemplated by the Debt Financing Commitment as permitted by this Section 4.11 to be amended, modified or replaced and references to “Debt Financing Commitment” and “Fee Letter” shall include such documents as permitted by this Section 4.11 to be amended, modified or replaced, in each case from and after such amendment, modification or replacement. (b) ~~Parent shall~~Nothing contained in this Agreement or otherwise shall require, and in no event shall the reasonable best efforts of Investor be deemed or construed to require, Investor to bring any enforcement action against any source of the Financing to enforce its rights under the Financing Commitments, except that (i) Investor shall enforce, including by bringing suit for specific performance, the Equity Financing Commitment solely if ITW seeks and is granted a decree of specific performance of the obligations pursuant to the terms of this Agreement to cause ~~its Affiliates~~ the Equity Financing to be funded to fund the Investment and ~~Representatives to~~to consummate the Investment after all conditions to the granting therefor set forth in Section 10.3(b) have been satisfied and (ii) following a written request by ITW, Investor shall use its reasonable best efforts to enforce (Aincluding by litigation) ~~to maintain in effect~~ its rights under the Debt Financing Commitment ~~Letter (provided that~~ to cause the ~~Debt Commitment Letter may be amended~~Financing Sources thereunder to, ~~supplemented, replaced, modified or waived as provided in this Section 6.13), (B)~~ subject to ~~negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on~~ the terms and conditions ~~that are not materially less favorable to Parent than those contained in~~ of the Debt Financing Commitment ~~Letter, (C) to satisfy on a timely basis (~~and the satisfaction or ~~obtain the~~ waiver ~~of), and in a manner that will not impede the ability~~ of the ~~parties to consummate~~ conditions in ARTICLE VI hereof, fund the ~~Merger, all conditions to receipt of the full amount~~ applicable portion of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.

Appears in 1 contract

Sources: Investment Agreement

Financing. (a) ~~Subject to the terms and conditions of this Agreement, Parent~~ Buyer shall use ~~its~~ commercially reasonable ~~best~~ efforts to take, or cause to be taken, at Buyer’s cost, all ~~actions~~ actions, and to do, or cause to be done, all things necessary, proper or advisable ~~or proper~~ to ~~arrange and~~ obtain the ~~Debt~~ proceeds of the Financing on or prior to the date the Closing is required to be consummated pursuant to the terms hereof, including by (i) maintaining in effect the Equity Commitment Letter and ~~conditions described in~~ the Debt Commitment Letter ~~pursuant to the terms thereof~~ (~~including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under~~ except that Buyer may amend or replace the Debt Commitment Letter in or Equity Commitment Letter or replace the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, Financing Entities under the Debt Commitment Letter if such ~~amendment, supplement, replacement, modification~~ amendment or ~~waiver~~ replacement does not (A) ~~reduces~~ reduce the aggregate amount of available under the ~~cash proceeds from~~ Equity Commitment Letter and Debt Commitment Letter below the ~~Debt Financing or~~ aggregate amount available thereunder on the date hereof (unless the Purchase Price has been reduced hereunder), (B) ~~imposes new or~~ add additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner precedent that would reasonably be expected to adversely impact the ability of Buyer to timely consummate the Closing, and Buyer provides Seller after any such amendment or replacement a copy thereof) or (xC) otherwise materially prevent, delay or ~~prevent~~ impair the ~~funding in full~~ availability of the Debt Financing (required to consummate the transactions contemplated by this Agreement or ~~satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect~~ the ability of ~~Parent~~ Buyer to enforce its rights against ~~other parties to~~ the Financing Entities under the Debt Commitment Letter or ~~the~~ any Definitive Agreements, (ii) negotiating and entering into definitive agreements with respect ~~thereto~~ to the Debt Financing (~~provided, that Parent may amend~~ the “Definitive Agreements”) consistent with the terms and conditions contained in the Debt Commitment Letter (including, as necessary, the “flex” provisions) or on other terms reasonably acceptable to ~~add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action~~ Buyer that would not reasonably be expected to ~~delay or prevent~~ materially and adversely impact the ability of Buyer to consummate the Closing~~). Parent shall promptly deliver to the Company true~~, ~~complete~~ and ~~correct copies of~~ Buyer provides Seller after any such ~~amendment~~amendment or replacement a copy thereof and (iii) satisfying on a timely basis all conditions in the Debt Commitment Letter and the Definitive Agreements and complying with its obligations thereunder. Buyer shall comply with its obligations, ~~modification or replacement~~and enforce its rights, under the Debt Commitment Letter and Definitive Agreements in a timely and diligent manner. (b) ~~Parent~~ At Buyer’s sole cost and expense, prior to the Closing, Seller shall, and shall use commercially reasonable efforts to cause its applicable Affiliates and their respective Representatives to, ~~use its~~ cooperate with Buyer’s reasonable ~~best efforts~~ requests as may be necessary to obtain the Debt Financing, including by: (A1) participating in a reasonable and limited number of meetings, presentations and due diligence sessions, at reasonable times and with reasonable advance notice, (2) furnishing Buyer and the Financing Entities as promptly as reasonably practicable following the delivery of a request therefor to ~~maintain~~ Seller by Buyer (which notice shall state with specificity the information requested) such financial and other information regarding each member of the Company Group or Non-Controlled Joint Ventures Group as is reasonably available to Seller at such time and is customarily required in ~~effect~~ connection with the execution of financings of a type similar to the Debt Financing, (3) providing a customary title affidavit and (4) executing and delivering one or more customary authorization letters in connection with the confidential information memoranda as contemplated by the Debt Commitment Letter or otherwise that are customarily required in connection with the financings of a type similar to the Debt Financing. Nothing contained in this Section 5.22 or otherwise shall require Seller or any of its Affiliates at any time or any member of the Company Group or Non-Controlled Joint Ventures Group prior to the Closing to be an issuer or other obligor with respect to the Debt Financing. Buyer shall, promptly upon request by ▇▇▇▇▇▇, reimburse Seller or any of its Affiliates for all reasonable out-of-pocket costs and expenses (~~provided that~~ including attorneys’ fees) incurred in connection with the cooperation contemplated by this Section 5.22, whether or not the transactions hereunder are consummated or this Agreement is terminated. (c) If for any reason all or any portion of the Debt Financing becomes unavailable on the terms and conditions or from the sources contemplated by the Debt Commitment ~~Letter may be amended~~Letter, ~~supplemented~~Buyer shall promptly notify Seller and use its commercially reasonable efforts to arrange and obtain, ~~replaced, modified or waived as provided in this Section 6.13), (B)~~ and to negotiate and enter into definitive agreements with respect to, alternative debt financing for any such portion from the same or alternative sources (the “Alternative Financing”) (i) as promptly as practicable following the occurrence of such event (and in any event on or prior to the date on which the Closing should have occurred pursuant to Section 2.2) and (ii) in an amount sufficient to, when taken with (y) the available portion of the Debt Financing and (z) the Equity Financing, consummate the Closing upon the terms contemplated by this Agreement; provided, that, in no event shall Buyer be required to, and in no event shall its commercially reasonable efforts be deemed or construed to require it to, obtain alternative financing that includes terms and conditions that are more onerous than the terms and conditions set forth in the Debt Commitment Letter (~~the~~ taking into account any “~~Debt Financing Agreements”~~market flex” provisions applicable thereto) ~~on the terms and conditions that are not materially less favorable~~ or would require it to ~~Parent than~~ pay any fees or agree to pay any interest rate amounts or original issue discount, in either case, in excess of those ~~contained in~~ contemplated by the Debt Commitment ~~Letter,~~ Letter (Ctaking into account any “market flex” provisions applicable thereto) ~~to satisfy on a timely basis (~~or ~~obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all~~ which include any conditions to ~~receipt~~ the consummation of such alternative debt financing that would reasonably be expected to make the ~~full amount~~ funding of ~~the Debt Financing at the Closing set forth therein that are within its control or subject~~ such alternative debt financing less likely to ~~its influence and~~occur, ~~upon satisfaction of~~ than the conditions set forth in the Debt Commitment Letter~~, to consummate the Debt~~ . If any Alternative Financing ~~at or prior to the Closing, (D) to comply~~ is obtained in accordance with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this ~~clause (B~~Section 5.22(c), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent Buyer shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof notify Seller thereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement references to the “Debt Financing~~” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below~~”, ~~(ii) any reference in this Agreement to the~~ “Financing”, “Debt Commitment Letter” ~~shall be deemed to include the Debt~~ and “Financing Commitment ~~Letter which is not superseded by a New Debt Commitment Letter at the time in question~~ Letters” (and ~~each New Debt Commitment Letter to the extent then in effect, and (iii) any reference~~ other like term in this ~~Agreement to “fee letter”~~ Agreement) shall ~~be deemed to~~ include ~~any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect~~such Alternative Financing, as applicable. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.

Appears in 1 contract

Sources: Securities Purchase Agreement (Algonquin Power & Utilities Corp.)

Financing. (a) ~~Subject to the terms and conditions of this Agreement, Parent~~ Gold shall use its reasonable best efforts ~~to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper~~ to arrange and obtain the Debt Financing on or prior to the Closing Date on the terms and conditions (including the "flex" provisions) described in the Debt Commitment Letter ~~pursuant to the terms thereof~~ (~~including~~ which, for purposes of this Section 5.08, shall include any ~~“market flex” provisions)~~ Fee Letter), including using ~~its~~ reasonable best efforts to ~~seek~~ (i) satisfy on a timely basis all conditions and covenants applicable to Gold and in its control in the Debt Commitment Letter, (ii) enter into definitive agreements with respect thereto on the terms and conditions (as such terms may be modified or adjusted in accordance with the terms of, and within the limits of, the flex provisions contained in any Fee Letter) no less favorable to Gold and the Company, taken as a whole, than those contemplated by the Debt Commitment Letter, including for the avoidance of doubt the "flex" provisions of any Fee Letter, and which terms and conditions will not expand the conditions to the Closing to the funding on the Closing Date of the Debt Financing in a manner that could delay or prevent or the funding thereof, and (iii) enforce its rights under the Debt Commitment Letter in and, if applicable, the ~~event of a breach thereof by the financing provider(s) thereunder~~definitive agreements with respect thereto. ~~Parent~~ Gold shall ~~not, without the Company’s prior written consent, permit~~ not agree to any ~~amendment, supplement, replacement~~ amendments or ~~modification to be made~~ modifications to, or grant any ~~waiver of~~ waivers of, any condition or other provision ~~under,~~ under the Debt Commitment Letter without the prior written consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed) if such ~~amendment, supplement, replacement,~~ amendment or modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (xi) ~~delay or prevent~~ reduce the ~~funding in full~~ aggregate amount of the Debt Financing ~~(or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y)~~ in a manner that would adversely ~~affect~~ impact the ability of ~~Parent~~ Gold, Holdco or Sub to ~~enforce~~ consummate the Mergers or to provide for the Financing Uses, (ii) impose new or additional conditions in a manner that would adversely impact the ability of Gold, Holdco or Sub to obtain the Debt Financing or (iii) make it less likely that the Debt Financing would be funded. Gold shall use its ~~rights against other parties~~ reasonable best efforts to maintain in effect the Debt Commitment Letter ~~or the~~ (including any definitive agreements ~~with respect thereto (provided~~relating thereto) until the transactions contemplated by this Agreement are consummated; provided that, ~~that Parent~~ subject to the limitations set forth in Section 5.08(b), Gold may amend the Debt Commitment Letter to add ~~or replace~~ lenders, lead arrangers, bookrunners, syndication agents or similar entities ~~so long~~ who had not executed the Debt Commitment Letter as ~~such action would~~ of the date hereof and may otherwise amend, modify or restate the Debt Commitment Letter in any manner not ~~reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement~~inconsistent with this paragraph. (b) ~~Parent~~ In no event shall Gold or any of its affiliates (i) award any agent, broker, investment banker, financial advisor or other firm or person any financial advisory role on an exclusive basis, or (ii) engage any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis, in the case of clauses (i) and (ii) in connection with the Mergers or the other transactions contemplated hereby. (c) If any portion of the Debt Financing expires or otherwise becomes unavailable on the terms and conditions (including any "flex" provisions) contemplated in the Debt Commitment Letter, Gold shall, ~~and shall cause its Affiliates and Representatives to~~as promptly as practicable following the occurrence of such event, use its reasonable best efforts to arrange and obtain a new debt commitment letter (~~A) to maintain in effect the~~ a "New Debt Commitment ~~Letter~~ Letter") and related fee letter (~~provided~~ with the fees, economic flex terms, securities demand (other than provisions regarding the timing thereof and the result of non-compliance therewith) and other proprietary economic terms therein redacted) (a "New Fee Letter") from the same sources or alternative sources providing for debt financing in an amount sufficient to satisfy the Financing Uses, on terms and conditions (including any "flex" provisions) that ~~the Debt Commitment Letter may be amended~~are at least as favorable, ~~supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements~~ with respect to enforceability, financing structure and conditionality, to Gold and the ~~Debt Commitment Letter (~~Company in the ~~“Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than~~ aggregate as those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. ~~In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub~~ Gold shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide deliver to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter ~~is obtained~~and New Fee Letter. In the event Gold enters into any such New Debt Commitment Letter, (i) any reference in this Agreement to the “"Debt Financing” " shall ~~include~~ mean the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, and (ii) any reference in this Agreement to the “"Debt Commitment Letter” " shall be deemed to include the Debt Commitment Letter ~~which is~~ and any Fee Letter to the extent not superseded by a New Debt Commitment Letter or New Fee Letter, as the case may be, at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter ~~at the time in question and each~~ or New ~~Debt Commitment~~ Fee Letter to the extent then in effect. (d) Gold shall keep the Company reasonably informed as promptly as practicable of the status of its efforts to arrange the Debt Financing and promptly provide copies of all initial drafts and substantially final drafts of documents provided to or from the lenders or otherwise related to the Debt Financing to the Company. Without limiting the generality of the foregoing, Gold shall (i) furnish the Company complete, correct and executed copies of any amendments to the Debt Commitment Letter promptly upon their execution, (ii) give the Company prompt notice of any breach or threatened breach by any party of the Debt Commitment Letter, or of any condition not likely to be satisfied, in each case of which Gold, Holdco or Sub becomes aware, and of any termination or threatened termination thereof, and (iii) promptly provide the Company with any additional information reasonably requested by the Company from time to time relating to Gold's efforts to arrange the Debt Financing. (e) On Prior to the Closing, the Company shall, and shall cause the Company Subsidiaries and use reasonable best efforts to cause the Company Representatives to, provide to Gold all cooperation reasonably requested by Gold in connection with the Debt Financing, including using reasonable best efforts to (i) participate in a reasonable number of meetings, presentations, road shows, due diligence sessions and sessions with rating agencies, (ii) assist with the preparation of customary materials for rating agency presentations, offering documents, consent solicitation statements and/or tender offer documentation, private placement memoranda, bank information memoranda, prospectuses and similar documents, (iii) execute and deliver customary definitive financing documents and closing documents, including secretary's certificates, corporate documents or evidence of authorization, in each case to be effective as of the Company Merger Effective Time, but, for the avoidance of doubt, no solvency certificate, (iv) furnish Gold and the Financing Sources with customary financial and other pertinent information regarding the Company as may be reasonably requested by Gold, including, without limitation, all financial statements and financial data of the type required by Regulation S-X and Regulation S-K under the Securities Act and of type and form customarily included in private placements under Rule 144A of the Securities Act, to consummate the offerings of any debt securities contemplated by the Debt Commitment Letter; provided, however, that the Company shall not be required to furnish any such financial statements or financial data prior to the date the Company is required to file such financial statements and financial data with the SEC, (v) obtain customary accountants' comfort letters, authorization letters to Financing Sources with respect to the absence of material non-public information and legal opinions as reasonably requested by Gold, (vi) furnish Gold with reasonable documents or other information required by the Financing Sources with respect to the Debt Financing under applicable "know your customer" and anti-money laundering rules and regulations, including the U.S.A. Patriot Act of 2011, in each case, at least three (3) Business Days prior to the Closing ~~Date~~if such information was requested at least ten (10) days prior to the Closing, ~~Parent~~ (vii) cooperate with the customary marketing efforts of Gold and its Financing Sources for all or any portion of the Debt Financing or any New Debt Commitment, (viii) cooperate with the Financing Sources' customary securities underwriting and secured lending due diligence investigation, to the extent customary and reasonable, (ix) cooperate with Gold in any consent solicitation or offer process involving the Company's existing publicly traded debt securities (including, without limitation, by assisting with the launch of consent solicitations with respect to such securities and/or offering to purchase such securities), in each case, solely to the extent any such process is managed by and paid for by Gold and (x) otherwise take reasonable actions within its control to cooperate in satisfying the conditions precedent set forth in any definitive document related to the Financing; provided, however, that nothing herein shall ~~provide all funds~~ require such cooperation to the extent it would interfere unreasonably with the business or operations of the Company or its Subsidiaries; provided, further, that neither the Company nor any of its Subsidiaries shall be required to ~~effect the repayment of all indebtedness under~~ commit to take any action or otherwise bind the Company ~~Credit Agreement~~ or any of its Subsidiaries in ~~full~~ any way to any obligation under an agreement or document related to the Debt Financing that is (a) not contingent upon the Closing (including the entry into any purchase agreement) or that would be effective prior to the Company Merger Effective Time or (b) prohibited by applicable Law. None of the Company or any of its Subsidiaries shall be required to pay any commitment fee or other similar fee or make any other payment other than reasonable out-of-pocket costs or incur any other liability or provide or agree to provide any indemnity in connection with the Debt Financing or any of the foregoing prior to the Company Merger Effective Time. Gold shall indemnify and hold harmless the Company, the Company Subsidiaries and the Company Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with the arrangement of the Debt Financing (including any action taken in accordance with this Section 5.08(e)) and any information utilized in connection therewith (other than historical information relating to the Company ~~Credit Agreement~~or the Company Subsidiaries); in each case, ~~subject~~ except to ~~compliance~~ the extent that any such liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties are suffered or incurred as a result of the Company's, the Company Subsidiaries' or the Company Representatives' gross negligence, or willful misconduct, as applicable. Notwithstanding anything to the contrary, the condition set forth in Section 6.02(b), as it applies to the Company's obligations under this Section 5.08(e), shall be deemed satisfied unless the Debt Financing (or any alternative financing) has not been obtained primarily as a result of the Company's or its Subsidiaries' willful breach of their obligations under this Section 5.08(e). Gold shall, promptly upon request by the Company, reimburse the Company for all documented and reasonable out-of-pocket costs incurred by the Company or its Subsidiaries in connection with ~~Section 6.14(a)(iii)~~such cooperation. (f) ~~Notwithstanding anything~~ The Company shall deliver all customary notices and take all other reasonable actions solely in the Company's control required to cause, and shall use commercially reasonable efforts to otherwise effect, the repayment in full on the Closing Date (or in the case of letters of credit, cash collateralization, to the ~~contrary contained herein~~extent that Gold shall not have entered into an alternative arrangement with the issuing bank) of all obligations then outstanding under, ~~Parent’s obligations hereunder~~ and the termination on the Closing Date of, that certain Amended and Restated Credit Agreement, dated April 23, 2013, among the Company, as borrower, the lenders party thereto and The Royal Bank of Scotland Plc, as administrative agent (it being understood that the payment of such amounts and the provision of any cash collateral or backstop or replacement letters of credit shall be made or provided by Gold). (g) The Company hereby consents to the use of its and the Company's Subsidiaries' logos in connection with the Debt Financing; provided, that, such logos are used solely in a manner that is not ~~subject~~ intended to ~~a condition regarding Parent’s~~ or reasonably likely to harm or disparage the Company or any Company Subsidiary or the reputation or goodwill of the Company or any Company Subsidiary or any of ~~its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement~~their respective products, services, offerings or intellectual property rights.

Appears in 1 contract

Sources: Merger Agreement (International Game Technology)

Financing. (a) ~~Subject~~ Parent shall use its commercially reasonable efforts to arrange the Financing on the terms and conditions described in the Financing Commitments (including any flex provisions applicable thereto), including using commercially reasonable efforts to (A) satisfy on a timely basis (taking into account the expected timing of ~~this Agreement~~the Marketing Period) all conditions applicable to Parent in the Financing Commitments that are within its control (or obtain the waiver of conditions applicable to Parent contained in the Financing Commitments) and (B) maintain in full force and effect the Financing Commitments in accordance with the terms thereof. (b) Parent shall give the Group Companies prompt notice (i) of the occurrence of any actual or threatened material breach by any party to the Financing Commitments of which becomes known by the senior management of Parent, (ii) of any termination of the Financing Commitments, (iii) of all or any material portion of the Financing becoming unavailable for any reason, (iv) of the receipt of any written notice or other written communication from any Financing Source Party with respect to any material dispute or disagreement between or among any parties to any Financing Commitments or the definitive agreements relating to the obligation to fund the Financing or (v) if Parent believes in good faith that it will not be able to obtain Financing in the manner contemplated by the Financing Commitments. (c) Prior to the Closing, Parent shall not agree to any amendment, supplement, waiver or other modification of any provision under the Financing Commitments without the prior written consent of GA Inc. if such amendment, supplement, waiver or modification would (i) reduce the aggregate amount of the Financing, when taken together with the cash and cash equivalents of the Group Companies, to less than the amount required to fund the Closing Date Cash Consideration, (ii) impose new or additional conditions or expand any of the conditions to the receipt of the Financing or (iii) materially and adversely affect the ability of Parent to enforce its rights against the other parties to the Financing Commitments. For the avoidance of doubt, Parent may modify, amend or supplement the Financing Commitments to add lenders, lead arrangers, bookrunners, syndication agents, documentation agents or entities in similar roles without modifying any other terms of the Financing Commitments. Upon any material amendment, supplement, waiver or other modification of the Financing Commitments, Parent shall promptly deliver a copy thereof to GA Inc. (d) In the event that all or any material portion of the Financing becomes unavailable on the terms and conditions (including any market flex provisions applicable thereto but excluding any mandatory commitment reductions specified in the Financing Commitments) described in or contemplated by the Financing Commitments for any reason, Parent shall use its commercially reasonable ~~best~~ efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things ~~necessary, advisable or proper~~ necessary to arrange ~~and~~ to obtain ~~the Debt Financing on the terms and conditions described~~ alternative financing in ~~the Debt Commitment Letter pursuant~~ an amount (together with all other sources of cash that will be available to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date) sufficient to fund the Closing Date Cash Consideration, ~~or (y) adversely affect~~ which would not contain conditions that are materially less beneficial to Parent, would not involve any conditions to funding the ~~ability~~ Financing of ~~Parent to enforce its rights against other parties to~~ the ~~Debt Commitment Letter or~~ type that are not contained in the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action Financing Commitments and would not reasonably be expected to prevent, impede or materially delay ~~or prevent~~ the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement. (b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability consummation of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, ~~(x) the proceeds of such debt offerings or other incurrences have been received~~ in each case, as reasonably determined by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly Parent; provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, that Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient not be required to pay ~~all amounts required to be paid~~ any fees or expenses or incur any costs materially in ~~connection with the transactions contemplated by this Agreement and all conditions precedent to funding~~ excess of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing those contemplated by the ~~Debt Commitment Letter~~ Financing Commitments as ~~modified pursuant to clause (ii) below~~in effect on the date hereof, ~~(ii) any reference~~ in ~~this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded~~ each case, as reasonably determined by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectParent. (e) ~~On the Closing Date~~Other than for purposes of Section 4.7, ~~Parent~~ references herein to “Financing Commitments” shall ~~provide all funds required~~ include any commitment with respect to ~~effect the repayment of all indebtedness under the Company Credit Agreement~~ any alternative financing and include and mean such documents as amended, modified, supplemented or waived in ~~full in accordance with the Company Credit Agreement, subject to~~ compliance with this Section ~~6.14(a)(iii). (f) Notwithstanding anything~~ 5.13, and references to “Financing” shall include and mean the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions financing contemplated by such Financing Commitments, as amended, modified, supplemented or waived in compliance with this ~~Agreement~~Section 5.13, as applicable.

Appears in 1 contract

Sources: Transaction Agreement (StepStone Group Inc.)

Financing. (a) ~~Subject to the terms~~ Each of Parent and ~~conditions of this Agreement, Parent~~ Merger Subsidiary shall use its reasonable best efforts to ~~take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and~~ obtain the ~~Debt~~ Financing on the terms and conditions described in the ~~Debt~~ Financing Commitment ~~Letter pursuant to the terms thereof~~ Letters (including ~~any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under~~ the ~~Debt Commitment Letter~~ flex provisions therein, but not in excess or outside of such provisions unless so agreed by Parent or Merger Subsidiary, and taking into account the ~~event~~ anticipated timing of ~~a breach thereof by~~ the ~~financing provider(s) thereunder. Parent~~ Marketing Period), and shall ~~not, without the Company’s prior written consent,~~ not permit any ~~amendment, supplement, replacement~~ amendment or modification to be made to, or any waiver of any provision under, the ~~Debt~~ Financing Commitment ~~Letter~~ Letters if such amendment~~, supplement, replacement~~, modification or waiver (Ai) reduces (or would have the effect of reducing) the aggregate amount of the cash proceeds available from the Financing (including by increasing the amount of fees to be paid or original issue discount unless (A) the Debt Financing or the Equity Financing is increased by a corresponding amount and (B) after giving effect to any of the transactions referred to in clause (A) above, the representation and warranty set forth in Section 6.06 shall be true) or (ii) imposes new or additional conditions ~~to the initial funding~~ or otherwise ~~expands~~ expands, amends or modifies any of the conditions to the ~~receipt of the Debt~~ Financing, or otherwise expands, amends or modifies any other provision of the ~~Debt~~ Financing Commitment ~~Letter~~ Letters in a manner that would reasonably be expected to (xA) materially delay or prevent or make less likely the funding ~~in full~~ of the ~~Debt~~ Financing (or satisfaction of the conditions to the ~~Debt~~ Financing) on the date of the Offer Closing ~~Date,~~ or (yB) materially and adversely ~~affect~~ impact the ability of Parent or Merger Subsidiary to enforce its rights against other parties to the ~~Debt~~ Financing Commitment ~~Letter or~~ Letters (provided that, subject to compliance with the ~~definitive agreements with respect thereto (provided~~other provisions of this Section 8.04, ~~that~~ Parent and Merger Subsidiary may amend the Debt Commitment ~~Letter~~ Letters to add ~~or replace~~ additional lenders, ~~lead~~ arrangers, bookrunners, ~~syndication~~ agents or and other similar entities ~~so long as such action would not reasonably be expected to delay~~ or ~~prevent~~ modify the ~~Closing~~pricing terms). Parent shall promptly deliver to the Company ~~true, complete and correct~~ copies of any such amendment, modification or replacement. (b) Each of Parent ~~shall,~~ and Merger Subsidiary shall ~~cause its Affiliates and Representatives to,~~ use its reasonable best efforts to (Ai) to maintain in full force and effect the ~~Debt~~ Financing Commitment ~~Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)~~Letters, (Bii) to negotiate and enter into definitive agreements with respect to the Debt Commitment ~~Letter (the “Debt Financing Agreements”)~~ Letters on the terms and conditions ~~that are~~ (including the flex provisions but not ~~materially less favorable to~~ in excess or outside such flex provisions unless so agreed by Parent ~~than those~~ or Merger Subsidiary) contained in the Debt Commitment ~~Letter~~Letters (or on terms no less favorable to Parent or Merger Subsidiary (in the reasonable judgment of Parent) than the terms and conditions in the Debt Commitment Letters), (Ciii) to satisfy on a timely basis ~~(or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger,~~ all conditions applicable to ~~receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject~~ Parent and Merger Subsidiary to ~~its influence and, upon satisfaction of the conditions set forth~~ funding in the Debt Commitment ~~Letter~~Letters and in the Equity Commitment Letter that are within their control, (iv) in the event that all conditions in the Financing Commitment Letters and this Agreement have been satisfied, to consummate the ~~Debt~~ Financing at or prior to the ~~Closing,~~ Offer Closing and (Dv) to comply with its obligations under the ~~Debt~~ Financing Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt FinancingLetters. Parent shall keep the Company reasonably informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt ~~Financing, and, promptly following request by the Company,~~ Financing and provide to the Company copies of ~~all executed~~ material definitive agreements for the Debt ~~Financing Agreements. (c)~~ Financing. Without limiting the generality of the foregoing, Parent ~~agrees to notify~~ and Merger Subsidiary shall give the Company ~~promptly~~prompt notice (and, ~~and~~ in any ~~event~~ event, within ~~two~~ forty-eight (248) ~~Business Days, if at any time prior to the Closing Date~~ hours) (iA) ~~the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware~~ of any breach or default by any party to any of the Financing Commitment Letters of which Parent or Merger Subsidiary becomes aware, (AB) by of the receipt of any written notice from any Financing Source with respect to any (1) actual or potential breach, default, termination or repudiation by any party to any of the ~~Debt~~ Financing Commitment ~~Letter or~~ Letters of any ~~Debt~~ provisions of the Financing ~~Agreement~~ Commitment Letters or (B2) material dispute or disagreement between or among any ~~other party~~ parties to any of the Financing Commitment Letters with respect to the ~~Debt Commitment Letter~~ obligation to fund the Financing or ~~any Debt Financing Agreement if, in~~ the ~~case of this clause (B), such breach or default would reasonably be expected to affect the availability~~ amount of the ~~Debt~~ Financing to be funded at Closing and (C) if at any time for any reason Parent or ~~(iii) a counterparty indicates~~ Merger Subsidiary believes in ~~writing or orally~~ good faith that it will not ~~provide~~be able to obtain the Financing in an amount sufficient to consummate the Merger and the Offer on substantially the same terms and conditions, in the manner or ~~it refuses~~ from the sources contemplated by any of the Financing Commitment Letters. Upon the occurrence of any circumstance referred to ~~provide~~in clause (A), ~~all~~ (B) or (C) of the immediately preceding sentence or if any portion of the Debt Financing otherwise becomes unavailable, and such portion is necessary to fund an amount sufficient to consummate the Merger upon the terms contemplated by this Agreement and pay all related fees and expenses of Parent, Merger Subsidiary and their respective Representatives pursuant to this Agreement, Parent and Merger Subsidiary shall use their reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from the same or alternative sources on terms and conditions that are no less favorable (in the reasonable judgment of Parent) to Parent and Merger Subsidiary, taken as a whole (taking into account any flex provisions, but not in excess or outside such flex provisions unless so agreed by Parent and Merger Subsidiary), than those set forth in the Debt Financing Commitment, in an amount when added to the portion of the Financing being replaced that is still available, to consummate the transactions contemplated hereby as promptly as practicable following the occurrence of such event. Notwithstanding anything herein to the contrary, in no event shall the reasonable best efforts of Parent or Merger Subsidiary be deemed or construed to require Parent or Merger Subsidiary to, and neither Parent nor Merger Subsidiary shall be required to, (i) seek the Equity Financing from any source other than those counterparty to, or in any amount in excess of that contemplated by, the Equity Financing Commitment, (ii) pay any fees in excess of those contemplated by the ~~Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating~~ Financing Commitments or (iii) agree to any ~~circumstances referred to in this Section 6.13(c~~term that is outside of, or less favorable than, any applicable economic provision of the Debt Financing Commitments or any related fee letter (including any flex provision therein). Parent shall ~~not, nor shall it permit any of its Affiliates to, without~~ deliver to the ~~prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation~~ Company complete and correct copies of all or Contracts (including redacted fee letters) pursuant to which any such alternative source shall have committed to provide any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any Any reference in this Agreement to the “Debt Financing” and “Debt Financing Commitments” shall include the ~~debt~~ financing contemplated by the Debt ~~Commitment Letter~~ Financing Commitments on the date hereof, as permitted to be amended, modified ~~pursuant~~ or replaced (in whole or in part) by this Section 8.04(b), including any Alternative Financing, and references to ~~clause (ii) below, (ii) any reference in this Agreement to the~~ “Debt Commitment ~~Letter~~Letters” shall ~~be deemed to~~ include ~~the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question~~ such debt commitment letters and ~~each New Debt Commitment Letter to the extent then in effect, and (iii)~~ any ~~reference in this Agreement to “fee letter” shall be deemed to include any~~ redacted fee letter ~~relating~~ as permitted to ~~the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time~~ be amended, modified or replaced (in ~~question and each New Debt Commitment Letter to the extent then~~ whole or in ~~effect. (e~~part) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this ~~Agreement~~Section 8.04(b), including any commitment letter(s) and redacted fee letters entered into in connection with an Alternative Financing.

Appears in 1 contract

Sources: Merger Agreement (Telular Corp)

Financing. (a) Subject to the terms and conditions of this ~~Agreement~~Agreement (including Section 4.12), ~~Parent~~ Investor shall use its reasonable best efforts to ~~take, or cause~~ arrange for the Company to ~~be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and~~ obtain the proceeds of the Debt Financing on the terms and conditions (including the “flex” provisions) described in the Debt Financing Commitment ~~Letter pursuant to~~ and the ~~terms thereof (including any “market flex” provisions)~~ Fee Letter, including using its reasonable best efforts to ~~seek to enforce its rights under the Debt Commitment Letter~~ (i) except as otherwise permitted by this Section 4.11(a), maintain in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from effect the Debt Financing ~~or (B) imposes new or additional conditions~~ Commitment in accordance with the terms and subject to the ~~initial funding or otherwise expands any~~ conditions thereof, (ii) assist in the satisfaction on a timely basis (giving effect to the anticipated timing of the Marketing Period) of all conditions applicable to the ~~receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter~~ Company in ~~a manner that would reasonably be expected to (x) delay or prevent the funding in full of~~ obtaining the Debt Financing at the Closing set forth therein (including consummating the Equity Financing on the terms set forth in the Equity Financing Commitment at or ~~satisfaction~~ prior to Closing), and (iii) negotiate definitive agreements with respect to the Debt Financing on the terms and conditions (including the “flex” provisions) contemplated by the Debt Financing Commitment and the Fee Letter (provided that, upon request by ITW, Investor shall provide copies thereof to ITW on a current basis and consider in good faith any changes or comments thereto proposed by ITW and otherwise keep ITW reasonably informed on a current basis of the ~~conditions~~ status of its efforts to arrange the Debt Financing and afford ITW and the Company reasonable opportunity to attend and participate in any scheduled meetings or negotiations relating to the Debt Financing~~) on the Closing Date~~). Investor shall not, and shall not agree with Guarantor to, enter into any amendment, supplement or other modification of, or ~~(y) adversely affect the ability~~ waive any of ~~Parent to enforce~~ its rights ~~against other parties to~~ under, the Equity Financing Commitment. Investor may, without the consent of ITW, (x) amend, replace or modify the Debt Financing Commitment ~~Letter or~~ and the ~~definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment~~ Fee Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities ~~so long as such action would~~ or (y) otherwise amend, replace or modify, or consent to any waiver of any provision or remedy under, the Debt Financing Commitment, except for any amendment, replacement, modification, consent or waiver set forth in Schedule 4.11, each of which shall require the prior written consent of ITW, which, upon request, shall be promptly given or denied. For the avoidance of doubt, nothing contained herein shall prevent Investor from or reducing the total amount of funds available under the Debt Financing, provided that, in either case, the representations and warranties set forth in the last sentence of Section 3.6 remain true and correct. Investor shall obtain the Equity Financing contemplated by the Equity Financing Commitment upon satisfaction or waiver of the conditions to closing in Section 6.2 (other than those conditions that by their nature will not ~~reasonably~~ be ~~expected~~ satisfied until the Closing and subject to ~~delay or prevent~~ and in accordance with the ~~Closing~~terms of the Equity Financing Commitment). ~~Parent~~ Subject to the terms and conditions of this Agreement (including Section 4.12), in the event any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Financing Commitment, Investor shall promptly ~~deliver~~ notify ITW and shall use its reasonable best efforts to arrange for alternative financing from alternative sources (1) in an amount such that the aggregate funds that would be available to the Company ~~true~~at the Closing will be sufficient to perform its obligations hereunder, (2) with conditions to closing and funding which are not, when taken as a whole, more onerous than those in the Debt Financing Commitment, and (3) which shall not (subject to clause (y) of the second sentence of this Section 4.11) include terms that would require ITW’s consent pursuant clause (y) of the second sentence of this Section 4.11. Investor shall promptly (upon reasonable request by ITW) deliver to ITW true and complete ~~and correct~~ copies of all drafts of any alternative financing commitments (and consider in good faith any changes or comments thereto reasonably proposed by ITW) and all final agreements pursuant to which any such alternative source shall have committed to provide Investor with any portion of the Debt Financing. For purposes of this Section 4.11, Section 3.6 and Section 4.12, references to “Debt Financing” shall include the financing contemplated by the Debt Financing Commitment as permitted by this Section 4.11 to be amended, modified or replaced and references to “Debt Financing Commitment” and “Fee Letter” shall include such documents as permitted by this Section 4.11 to be amended, modified or replaced, in each case from and after such amendment, modification or replacement. (b) ~~Parent shall~~Nothing contained in this Agreement or otherwise shall require, and in no event shall the reasonable best efforts of Investor be deemed or construed to require, Investor to bring any enforcement action against any source of the Financing to enforce its rights under the Financing Commitments, except that (i) Investor shall enforce, including by bringing suit for specific performance, the Equity Financing Commitment solely if ITW seeks and is granted a decree of specific performance of the obligations pursuant to the terms of this Agreement to cause ~~its Affiliates~~ the Equity Financing to be funded to fund the Investment and ~~Representatives to~~to consummate the Investment after all conditions to the granting therefor set forth in Section 10.3(b) have been satisfied and (ii) following a written request by ITW, Investor shall use its reasonable best efforts to enforce (Aincluding by litigation) ~~to maintain in effect~~ its rights under the Debt Financing Commitment ~~Letter (provided that~~ to cause the ~~Debt Commitment Letter may be amended~~Financing Sources thereunder to, ~~supplemented, replaced, modified or waived as provided in this Section 6.13), (B)~~ subject to ~~negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on~~ the terms and conditions ~~that are not materially less favorable to Parent than those contained in~~ of the Debt Financing Commitment ~~Letter, (C) to satisfy on a timely basis (~~and the satisfaction or ~~obtain the~~ waiver ~~of), and in a manner that will not impede the ability~~ of the ~~parties to consummate~~ conditions in ARTICLE VI hereof, fund the ~~Merger, all conditions to receipt of the full amount~~ applicable portion of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.

Appears in 1 contract

Sources: Investment Agreement (Illinois Tool Works Inc)

Financing. (a) ~~Subject to the terms and conditions of this Agreement, Parent~~ Buyer shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable ~~or proper~~ to ~~arrange and~~ obtain the Debt Financing on the terms and conditions (including the flex provisions) described in the Debt ~~Commitment Letter pursuant~~ Financing Commitments and Buyer shall not agree to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, or permit any ~~amendment, supplement, replacement~~ amendment or modification to be made to, or any waiver of any provision or remedy under, the Debt ~~Commitment Letter~~ Financing Commitments without the prior written consent of the Seller, if such amendment, ~~supplement, replacement,~~ modification or waiver would (Ax) ~~reduces~~ reduce the aggregate amount of the ~~cash proceeds from the~~ Debt Financing below the amount required to consummate the transactions contemplated hereby, unless such reduction constitutes a Permitted Commitment Reduction or (By) ~~imposes~~ impose new or additional conditions ~~to the initial funding~~ or otherwise ~~expands~~ amend, modify or expand any ~~of the~~ conditions precedent to the receipt of the Debt ~~Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter~~ Financing in a manner that would reasonably be expected to (xi) delay or prevent the Closing, (ii) make the funding ~~in full~~ of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) ~~on the Closing Date,~~ less likely to occur or (yiii) adversely ~~affect~~ impact the ability of ~~Parent~~ Buyer to enforce its rights against the other parties to the Debt ~~Commitment Letter~~ Financing Commitments or the definitive agreements with respect ~~thereto~~ thereto, the ability of Buyer to consummate the purchase of the Shares or the likelihood of consummation of the purchase of the Shares (provided, however, that ~~Parent~~ Buyer may replace or amend the Debt ~~Commitment Letter~~ Financing Commitments (A) to add ~~or replace~~ lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Debt Financing Commitments as of the date of this Agreement, in each case in accordance with the Debt Financing Commitments as of the date hereof so long as the addition of such ~~action would~~ parties could not reasonably be expected to ~~delay or prevent~~ have any of the ~~Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement. (b~~effects described in clauses ‎(i) ~~Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A~~through ‎(iii) ~~to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)~~above, (B) to ~~negotiate~~ correct typographical errors and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) ~~to satisfy on a timely basis (or obtain the waiver of), and~~ in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection accordance with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions ~~and other economic terms that do not adversely affect the enforceability~~thereof. Upon any such amendment, ~~availability~~ replacement, supplement or ~~conditionality of, or the aggregate amount~~ modification of ~~proceeds available under,~~ the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.Commitments in

Appears in 1 contract

Sources: Stock Purchase Agreement (Conagra Foods Inc /De/)

Financing. (a) ~~Subject to the terms and conditions of this Agreement,~~ Parent shall use its reasonable best efforts to ~~take, or~~ cause the Financing to be ~~taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing~~ available on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company ~~true, complete and correct copies of any such amendment, modification or replacement~~through the Expiration Date. (b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed ~~on a current basis and in reasonable detail of~~ with respect to all material activity concerning the status of ~~its efforts to arrange~~ the ~~Debt Financing, and, promptly following request by the Company, provide to~~ Financing and shall give the Company ~~copies~~ prompt notice of ~~all executed Debt Financing Agreements. (c)~~ any material change with respect to such Financing. Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) ~~Business Days~~business days, if at any time prior to the Closing Date (i) ~~the Debt~~ any Commitment Letter is shall expire or be terminated for any reason, (ii) ~~Parent becomes aware of~~ any ~~breach or default (A) by any Financing Source~~ financing source that is a party to ~~the Debt~~ any Commitment Letter ~~or any Debt Financing Agreement or (B) any other party~~ notifies Parent that such source no longer intends to provide financing to Parent on the ~~Debt Commitment Letter or any Debt Financing Agreement if~~terms set forth therein, ~~in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing~~ or (iii) ~~a counterparty indicates~~ for any reason Parent no longer believes in ~~writing or orally~~ good faith that it will ~~not provide, or it refuses~~ be able to ~~provide,~~ obtain all or any portion of the ~~Debt Financing~~ financing contemplated by the ~~Debt~~ Commitment ~~Letter~~ Letters on substantially the terms ~~set forth~~ described therein~~. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c)~~. Parent shall not, ~~nor~~ and shall it not permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any ~~transaction~~ transaction, including any merger, acquisition, joint venture, disposition, lease, contract or debt or equity financing, that ~~would~~ could reasonably be expected to ~~materially~~ impair, delay or prevent ~~consummation of all or any portion~~ Parent's obtaining of the ~~Debt Financing. (d)~~ financing contemplated by any Commitment Letter. Parent shall ~~have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings~~ not amend or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default underalter, or ~~violation of~~agree to amend or alter, ~~the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt~~ any Commitment Letter ~~following such reduction~~in any manner that would impair, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings delay or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with prevent the transactions contemplated by this Agreement without the prior written consent of the Company. (c) If any Financing commitment shall be terminated or otherwise ceases to be available to Parent, Parent shall use its reasonable best efforts to obtain, and, if obtained, will provide the Company with a copy of, a new Financing commitment that provides for at least the same amount of financing and ~~all~~ funding conditions ~~precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable~~ reasonably acceptable to the Company ~~than~~and Parent. (d) The Company agrees to provide, and shall cause the ~~conditions precedent set forth~~ Subsidiaries and its and their Representatives to provide, such cooperation (including with respect to timeliness) in connection with the ~~Debt Commitment Letter, to supplement or replace~~ arrangement of the ~~Debt~~ Financing (~~“Alternative Debt Financing”). True~~including, ~~correct~~ without limitation, the issuance of senior notes contemplated by the Commitment Letters) as may be reasonably requested by Parent (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and ~~complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”~~the Subsidiaries), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, including (i) ~~any reference~~ participation in ~~this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below~~meetings, drafting sessions and due diligence sessions, (ii) furnishing Parent and its financing sources with financial and other pertinent information regarding the Company as may be reasonably requested by Parent, including all financial statements and financial data of the type required by Regulation S-X and Regulation S-K under the Securities Act and of type and form customarily included in private placements under Rule 144A of the Securities Act to consummate the offering of secured or unsecured senior or senior subordinated notes, (iii) assisting Parent and its financing sources in the preparation of (A) offering documents for any ~~reference~~ of the Financing and (B) materials for rating agency presentations, (iv) cooperating with the marketing efforts of Parent and its financing sources for any of the Financing, (v) providing and executing documents as may be reasonably requested by Parent, including a certificate of the chief financial officer of the Company with respect to solvency matters and consents of accountants for use of their reports in ~~this Agreement~~ any materials relating to the ~~“Debt Commitment Letter” shall be deemed to include~~ Financing, (vi) facilitating the ~~Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect~~pledging of collateral, and (~~iii~~vii) ~~any reference in this Agreement~~ using reasonable best efforts to ~~“fee letter” shall be deemed to include any fee letter relating to~~ obtain accountants' comfort letters, surveys and title insurance as reasonably requested by Parent. Parent shall, promptly upon request by the ~~Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date~~Company, ~~Parent shall provide all funds required to effect the repayment of all indebtedness under~~ reimburse the Company ~~Credit Agreement in full in accordance with~~ for all reasonable out-of-pocket costs incurred by the Company ~~Credit Agreement, subject to compliance~~ or the Subsidiaries in connection with ~~Section 6.14(a)(iii)~~such cooperation. (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.

Appears in 1 contract

Sources: Merger Agreement (Transmontaigne Inc)

Financing. (a) ~~Subject to the terms and conditions of this Agreement,~~ Parent shall use its reasonable best efforts to ~~take~~obtain, or cause to be ~~taken~~obtained, ~~all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain~~ the ~~Debt~~ proceeds of the Financing on the terms and conditions described in the ~~Debt~~ Commitment ~~Letter pursuant to the terms thereof (including any “market flex” provisions)~~ Letters, including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made with respect to, ~~or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver~~ (Ai) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement. (b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain maintaining in effect the ~~Debt~~ Commitment ~~Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)~~Letters, (Bii) ~~to negotiate and enter into~~ negotiating definitive agreements with respect to the Debt ~~Commitment Letter~~ Financing (the “~~Debt Financing~~ Definitive Agreements”) on consistent in all material respects with the terms and conditions ~~that are not materially less favorable to Parent than those~~ contained therein (including, as necessary, the “flex” provisions contained in the ~~Debt Commitment~~ Fee Letter) or, if available, on other terms that are acceptable to Parent and would not adversely affect (Cincluding with respect to timing, taking into account the expected timing of the Marketing Period) ~~to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede~~ the ability of ~~the parties~~ Parent to consummate the ~~Merger,~~ transactions contemplated herein and (iii) satisfying all conditions applicable to ~~receipt of~~ Parent and its Subsidiaries to obtaining the ~~full amount of the Debt~~ Financing ~~at the Closing set forth therein~~ that are within ~~its control~~ Parent or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective TimeMerger Sub’s control. In the event that all conditions ~~precedent expressly set forth~~ contained in the Debt Commitment Letter and Definitive Agreements have been ~~or,~~ satisfied (or upon funding ~~of the Debt Financing~~ will ~~be,~~ be satisfied), Parent and Merger Sub shall use their reasonable best efforts to ~~enforce their rights under, and~~ timely cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and Lenders to fund ~~on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange~~ the Debt Financing, ~~and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements~~as applicable. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (iib) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent and Merger Sub shall not~~, nor shall it permit any of its Affiliates to~~, without the prior written consent of the Company, ~~take~~ (i) terminate any ~~action~~ Commitment Letter, unless such Commitment Letter is replaced in a manner consistent with the following clause (ii), or ~~enter into~~ (ii) permit any ~~transaction that would reasonably be expected to materially impair~~amendment or modification to, ~~delay or prevent consummation of all~~ or any ~~portion~~ waiver of ~~the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings~~ any material provision or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default remedy under, or ~~violation of~~replace, the ~~Debt~~ Commitment ~~Letter~~Letters if such amendment, modification, waiver, or replacement (wA) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, would (x1) ~~the proceeds of such debt offerings~~ add any new (or ~~other incurrences have been received by Parent in cash, (y~~adversely modify any existing) ~~Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification~~ condition to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all Financing Commitments or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not otherwise adversely affect the ~~enforceability, availability~~ ability of Parent or ~~conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided~~ Merger Sub to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to timely consummate the ~~Merger and the~~ transactions ~~contemplated by this Agreement.~~contemplated

Appears in 1 contract

Sources: Merger Agreement (Pike Corp)

Financing. (a) ~~Subject~~ Each of Parent and Merger Sub shall use its best efforts to complete the Financing on the terms and conditions described in the Financing Commitments as promptly as practicable but in any event on or before the Outside Date, including using its best efforts to (i) negotiate definitive agreements with respect thereto (A) on the terms and conditions contained in the Financing Commitments or (B) on other terms and conditions that (1) are no less favorable to Parent and Merger Sub taken as a whole, (2) do not impose any conditions other than those set forth in the Debt Financing Commitments (the “Debt Financing Conditions”) or set forth in the Equity Commitment Letter, as applicable, or adversely change in any material respect any Debt Financing Condition or condition set forth in the Equity Commitment Letter, as applicable, and (3) would not reasonably be expected to prevent, materially delay or materially impair the ability of ~~this Agreement~~Parent or Merger Sub to consummate the Transactions on or before the Outside Date, (ii) satisfy on a timely basis all conditions applicable to Parent and/or Merger Sub in such definitive agreements that are within their control and (iii) not permit any amendment or modification to be made to, or any waiver of, any material provision or remedy under the Financing Commitments, if such amendment, modification or waiver (A) imposes any new or additional conditions or adversely changes in any material respect any Debt Financing Condition or condition set forth in the Equity Commitment Letter or (B) would reasonably be expected to prevent, materially delay or materially impair the ability of Parent or Merger Sub to consummate the Transactions on or before the Outside Date. (b) If all or a portion of the Financing becomes unavailable in accordance with the terms of the Financing Commitments, then (i) Parent shall notify the Company promptly and (ii) Parent and Merger Sub shall use ~~its~~ their respective reasonable best efforts to obtain any such portion from alternative sources as promptly as practicable following the occurrence of such event, on terms that (A) are no less favorable than those in the Financing Commitments to Parent and Merger Sub taken as a whole and (B) would not reasonably be expected to prevent, materially delay or materially impair the ability of Parent or Merger Sub to consummate the Transactions on or before the Outside Date (the “Alternative Financing”), and to obtain a new financing commitment letter related to such Alternative Financing (the “Alternative Financing Commitment”). If applicable, each of Parent and Merger Sub shall use their respective best efforts to take, or cause to be taken, all actions and ~~to do, or cause to be done, all~~ things necessary, proper or advisable ~~or proper~~ to arrange promptly and ~~obtain~~ consummate the ~~Debt~~ Alternative Financing on the terms and conditions described in the ~~Debt~~ Alternative Financing Commitment ~~Letter pursuant to~~ as promptly as practicable but in any event on or before the ~~terms thereof (including any “market flex” provisions)~~ Outside Date, including using ~~its reasonable~~ best efforts to ~~seek~~ (i) negotiate definitive agreements with respect to ~~enforce its rights under~~ the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made toAlternative Financing (such definitive agreements, or any ~~waiver of any provision under~~definitive agreements entered into under Section 7.08(a), the ~~Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver~~ “Financing Agreements”) (A) ~~reduces~~ on the ~~aggregate amount of~~ terms and conditions contained in the ~~cash proceeds from the Debt~~ Alternative Financing Commitment or (B) ~~imposes~~ on other terms and conditions that (1) are no less favorable to Parent and Merger Sub taken as a whole, (2) do not impose any new or additional ~~conditions to the initial funding~~ conditions, or ~~otherwise expands~~ adversely change in any ~~of the conditions~~ material respect any existing conditions, to the receipt of the ~~Debt Financing, or otherwise expands, amends or modifies any other provision of~~ Alternative Financing as set forth in the ~~Debt Commitment Letter in a manner that would reasonably be expected to~~ Alternative Financing Commitments and (x3) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to prevent, materially delay or ~~prevent~~ materially impair the ~~Closing)~~ability of Parent or Merger Sub to consummate the Transactions on or before the Outside Date, (ii) satisfy on a timely basis all conditions applicable to Parent and Merger Sub in such definitive agreements that are within their control, and (iii) upon satisfaction of such conditions, to use their best efforts to cause the funding of such Alternative Financing. (c) Parent and Merger Sub shall, and shall use their best efforts to cause their Representatives to, comply in all material respects with the terms of the Financing Commitments, any Alternative Financing Commitment, the Financing Agreements and any related fee and engagement letters. Parent shall ~~promptly deliver~~ (i) furnish to the Company ~~true~~complete, ~~complete~~ correct and ~~correct~~ executed copies of ~~any such amendment~~the Financing Agreements promptly upon their execution and (ii) otherwise keep the Company reasonably informed of the status of Parent’s efforts to arrange the Financing or the Alternative Financing, ~~modification or replacement~~as applicable, including providing to the Company copies of Financing Agreements in substantially final form following the negotiation thereof. (bd) ~~Parent shall~~Prior to the Effective Time, the Company, acting through the Special Committee if then in existence or otherwise by resolution of a majority of Disinterested Directors, shall provide, and shall cause its ~~Affiliates and Representatives~~ subsidiaries to, and shall use its ~~reasonable~~ best efforts ~~(A)~~ to ~~maintain~~ cause their respective Representatives, including legal and accounting, to, provide all cooperation reasonably requested by Parent in ~~effect~~ connection with the Debt ~~Commitment Letter~~ Financing or any Alternative Financing, including, without limitation: (~~provided that the Debt Commitment Letter may be amended~~i) reasonable participation in a reasonable number of meetings, ~~supplemented~~presentations, ~~replaced~~due diligence sessions, ~~modified or waived as provided in this Section 6.13)~~drafting sessions, ~~(B) to negotiate~~ road shows and ~~enter into definitive agreements~~ sessions with rating agencies with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of definitive financing arrangements for the Debt Financing at or any Alternative Financing; (ii) assistance with the ~~Closing set forth therein that are within~~ preparation of customary materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses, business projections and financial statements (including those required by the SEC) and similar documents required in connection with the Debt Financing or any Alternative Financing; (iii) execution and delivery of any pledge and security documents and other similar documents, other definitive financing documents, and other certificates and documents to be executed and delivered by the Company or any of its ~~control or subject to its influence and, upon satisfaction~~ subsidiaries as may be reasonably requested by Parent (including a certificate of the ~~conditions set forth~~ chief financial officer of the Company or any subsidiary with respect to solvency matters) and otherwise facilitate the pledging of collateral, in each case so long as not effective until on or after the Effective Time; (iv) furnishing Parent and its Debt ~~Commitment Letter~~Financing or Alternative Financing sources with readily-available historical financial and other pertinent information regarding the Company as may be reasonably requested by Parent, including all historical financial statements and financial data of the type required by Regulation S-X and Regulation S-K under the Securities Act and of the type and form customarily included in private placements under Rule 144A under the Securities Act, to consummate the Debt Financing at or ~~prior~~ any Alternative Financing transaction executed in connection with the Transactions; (v) using best efforts to assist Parent in obtaining accountants’ comfort letters, legal opinions, surveys and title insurance as may be reasonably requested by Parent or the ~~Closing, (D) to comply with its obligations~~ lenders under the Debt ~~Commitment Letter, and~~ Financing Commitments or any Alternative Financing Commitment; (Evi) ~~to consummate~~ permit the prospective lenders involved in the Debt Financing at or any Alternative Financing to evaluate the Company’s current assets and cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements; (vii) so long as not effective until on or after the Effective Time, establish bank and other accounts and blocked account agreements and lock box arrangements in connection with any such collateral arrangements; and (viii) taking all corporate actions, subject to the occurrence of the Effective Time, reasonably requested by Parent to permit the consummation of the Debt Financing or any Alternative Financing and to permit the proceeds thereof to be made available to the Surviving Corporation immediately after the Effective Time. The Company shall cause its officers, in their capacities as officers, to deliver such customary management representation letters as any audit firm may request in connection with any comfort letters or similar documents required in connection with the Debt Financing or any Alternative Financing. The Company hereby consents to the use of its and its subsidiaries’ logos in connection with the Debt Financing or any Alternative Financing, provided that such logos are used in a manner that is not intended to nor reasonably likely to harm or disparage the Company or the reputation or goodwill of the Company or any of its subsidiaries and its or their marks. Nothing contained in this Section 7.08 or otherwise shall require the Company to be an issuer or other obligor with respect to the Debt Financing or any Alternative Financing prior to the Effective Time. ~~In the event that all conditions precedent expressly set forth~~ Nothing contained in ~~the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub~~ this Section 7.08 or otherwise shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep require the Company ~~informed on a current basis and in reasonable detail of the status of its efforts~~ to ~~arrange the Debt Financing, and, promptly following request by the Company, provide~~ pay any Transaction Costs related to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or ~~(iii) a counterparty indicates in writing or orally that it will not provide, or it refuses~~ any Alternative Financing other than the Transaction Costs related to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in such cooperation under this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii7.08(d). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.

Appears in 1 contract

Sources: Merger Agreement (Landrys Restaurants Inc)

Financing. (a) ~~Subject to the terms and conditions of this Agreement,~~ Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable ~~or proper~~ to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent Financing Commitments and shall ~~not, without the Company’s prior written consent,~~ not permit any ~~amendment, supplement, replacement~~ amendment or modification to be made to, or any waiver of any provision ~~under,~~ or remedy under the ~~Debt Commitment Letter~~ Financing Commitments if such amendment, ~~supplement, replacement,~~ modification or waiver would (Ax) ~~reduces~~ reduce the aggregate amount of the ~~cash proceeds from~~ Debt Financing (including by changing the amount of fees to be paid or original issue discount of the Debt Financing unless the Equity Financing is increased by a corresponding amount), or (By) ~~imposes~~ impose new or additional ~~conditions to the initial funding~~ conditions, or otherwise ~~expands~~ amend, modify or expand any ~~of the conditions~~ conditions, to the receipt of the Debt ~~Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter~~ Financing in a manner that would reasonably be expected to (xI) delay or prevent the Closing Date, (II) make the funding ~~in full~~ of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) ~~on the Closing Date,~~ less likely to occur or (yIII) adversely ~~affect~~ impact the ability of Parent or Merger Sub to enforce its rights against the other parties to the Debt ~~Commitment Letter~~ Financing Commitments or the definitive agreements with respect ~~thereto (provided~~thereto, the ability of Parent or Merger Sub to consummate the transactions contemplated hereby or the likelihood of consummation of the transactions contemplated hereby. Subject to the limitations set forth in this Section 6.14 and provided that the representations in Section 5.2(e) shall be true and correct giving effect to such replacement or amendment, Parent and Merger Sub may replace or amend the Debt ~~Commitment Letter~~ Financing Commitments to add ~~or replace~~ lenders, lead arrangers, bookrunners, syndication agents or similar entities ~~so long~~ that have not executed the Debt Financing Commitments as of the date hereof, if the addition of such ~~action~~ additional parties, individually or in the aggregate, would not reasonably be expected to (i) delay or prevent the ~~Closing~~Closing Date, (ii) make the funding of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) less likely to occur or (iii) adversely impact the ability of Parent or Merger Sub to enforce its rights against the other parties to the Debt Financing Commitments or the definitive agreements with respect thereto, the ability of Parent or Merger Sub to consummate the transactions contemplated hereby or the likelihood of consummation of the transactions contemplated hereby. For purposes of this Section 6.14, references to “Financing” shall include the financing contemplated by the Financing Commitments as permitted to be amended or modified by this Section 6.14(a) and references to “Financing Commitments” or “Debt Financing Commitments” shall include such documents as permitted to be amended or modified by this Section 6.14(a). Without limiting the foregoing, Parent and Merger Sub shall ~~promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement. (b) Parent shall, and shall cause its Affiliates and Representatives to,~~ use ~~its~~ their reasonable best efforts to (Ai) to maintain in effect the Debt ~~Commitment Letter~~ Financing Commitments until the transactions contemplated by this Agreement are consummated, (~~provided that~~ ii) satisfy all conditions and covenants applicable to Parent and Merger Sub in the Debt ~~Commitment Letter may be amended, supplemented, replaced, modified~~ Financing Commitments (including by consummating the financing pursuant to the terms of the Equity Financing Commitments) at or ~~waived as provided in this Section 6.13)~~prior to Closing and otherwise comply with its obligations thereunder, (Biii) ~~to negotiate and~~ enter into definitive agreements with respect ~~to the Debt Commitment Letter (the “Debt Financing Agreements”)~~ thereto on the terms and conditions ~~that are not materially less favorable to Parent than those contained in~~ (including the ~~Debt Commitment Letter, (C~~flex provisions) ~~to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of~~ contemplated by the Debt Financing ~~at the Closing set forth therein that are within its control or subject to its influence and~~Commitments, ~~upon satisfaction of the conditions set forth in the Debt Commitment Letter, to~~ (iv) consummate the ~~Debt~~ Financing at or prior to the Closing, (Dv) ~~to comply with~~ enforce its ~~obligations~~ rights under the Debt ~~Commitment Letter,~~ Financing Commitments (including by suit or other appropriate proceeding) and (Evi) cause the lenders and other Persons providing Financing to fund on the Closing Date the Financing contemplated to be funded on the Closing Date by the Debt Financing Commitments (or such lesser amount as may be required to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders Merger and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financingtransactions contemplated hereby). Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the generality of the foregoing, Parent ~~agrees to notify~~ and Merger Sub shall give the Company ~~promptly, and in any event within two~~ prompt notice: (2A) ~~Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware~~ of any breach or default (~~A) by any Financing Source party to the Debt Commitment Letter~~ or any ~~Debt Financing Agreement~~ event or ~~(B) any other party to the Debt Commitment Letter~~ circumstance that, with or ~~any Debt Financing Agreement if~~without notice, ~~in the case~~ lapse of ~~this clause (B)~~time or both, ~~such breach or default~~ would reasonably be expected to ~~affect~~ give rise to any breach or default) by any party to any Financing Commitment or definitive document related to the ~~availability~~ Financing of which Parent or its Affiliates becomes aware; (B) of the ~~Debt~~ 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 or any provisions of the Financing Commitment or any definitive document related to the Financing or (~~iii~~y) ~~a counterparty indicates~~ material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing (but excluding, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Financing or any definitive agreement with respect thereto); and (C) if for any reason Parent or Merger Sub believes in ~~writing or orally~~ good faith that it will not ~~provide, or it refuses~~ be able to ~~provide,~~ obtain all or any portion of the ~~Debt~~ Financing on the terms, in the manner or from the sources contemplated by the ~~Debt~~ Financing Commitment ~~Letter on~~ or the ~~terms set forth therein~~definitive documents related to the Financing; provided, that in no event will Parent or Merger Sub be under any obligation to disclose any information that is subject to attorney-client or similar privilege if Parent and Merger Sub shall have used their reasonable best efforts to disclose such information in a way that would not waive such privilege. As soon as reasonably practicable, but in any event within five (5) business days after the date the Company delivers Parent or Merger Sub a written request, Parent and Merger Sub shall ~~promptly~~ provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.reasonably

Appears in 1 contract

Sources: Merger Agreement (Commscope Inc)

Financing. (a) ~~Subject to the terms and conditions of this Agreement, Parent~~ Buyer shall use ~~its~~ reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, as promptly as possible, all things necessary, proper or advisable ~~or proper~~ to arrange and obtain the ~~Debt~~ Financing on the terms and conditions described in the Equity Commitment Letter and the Debt Commitment Letter, including maintaining in effect the Equity Commitment Letter and the Debt Commitment Letter and using reasonable best efforts to, as promptly as possible, satisfy on a timely basis all conditions applicable to Buyer obtaining the Financing set forth therein (including by consummating the Equity Financing pursuant to the terms ~~thereof~~ of the Equity Commitment Letter and the Debt Financing pursuant to the terms of the Debt Commitment Letter). Buyer shall give Seller prompt written notice (~~including~~ i) of any ~~“market flex” provisions~~material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, would reasonably be expected to result in a breach or default) ~~including using its~~ by any party to the Equity Commitment Letter or the Debt Commitment Letter of which Buyer becomes aware, (ii) of the receipt of any written notice or other written communication from any Person with respect to any (A) actual or potential breach, default, termination or repudiation by any party to the Equity Commitment Letter or the Debt Commitment Letter or (B) material dispute or disagreement between or among any parties to the Equity Commitment Letter or the Debt Commitment Letter (but excluding, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Financing), (iii) in the event Buyer becomes aware that any portion of the Financing is not reasonably likely to be available to consummate the transactions contemplated by this Agreement and (iv) of any termination of the Equity Commitment Letter or the Debt Commitment Letter. If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter, Buyer shall, without limiting the obligations of Buyer set forth in the immediately following sentence, use reasonable best efforts to ~~seek~~ arrange to ~~enforce its rights under~~ obtain alternative financing, including from alternative sources, on terms in the aggregate not materially less favorable to Buyer (in the reasonable judgment of Buyer) than the Debt Financing contemplated by the Debt Commitment Letter in an amount sufficient to consummate the transactions contemplated hereby (“Alternative Financing”) as promptly as practicable following the occurrence of such event and the provisions of ~~a breach thereof by~~ this Section 6.10 and Section 9.9 shall be applicable to the ~~financing provider(s) thereunder~~Alternative Financing, and, for the purposes of this Section 6.10 and Section 9.9, all references to the Debt Financing shall be deemed to include such Alternative Financing, all references to the Debt Commitment Letter shall include the applicable documents for the Alternative Financing and all references to the Debt Financing Sources shall include the Persons providing or arranging the Alternative Financing. ~~Parent~~ Buyer shall ~~not~~not permit, without the ~~Company’s~~ prior written ~~consent~~consent of the Company, ~~permit~~ any ~~amendment, supplement, replacement~~ amendment or modification to be made to, or any waiver of any provision or remedy under, ~~the Debt~~ any Commitment Letter if such amendment, ~~supplement, replacement, modification or waiver~~ 46 (Ab) ~~reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions~~ Prior to the ~~initial funding or otherwise expands any of~~ Closing, Seller shall use its reasonable best efforts, and shall cause the ~~conditions~~ Company and the Subsidiary to use their reasonable best efforts to provide, to the ~~receipt of the Debt Financing~~extent within their applicable control, ~~or otherwise expands~~Buyer, ~~amends or modifies any other provision of the Debt Commitment Letter~~ such customary cooperation reasonably requested by Buyer, at Buyer’s sole expense, in ~~a manner that would reasonably be expected to (x) delay or prevent the funding in full of~~ connection with the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, however, that ~~Parent may amend~~ such requests shall not unreasonably interfere with the ~~Debt Commitment Letter to add or replace lenders~~ongoing operations of Seller and its Affiliates, ~~lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to~~ including the Company ~~true~~and the Subsidiary), ~~complete and correct copies of any such amendment, modification or replacement. (b) Parent shall, and shall cause its Affiliates and Representatives to, use~~ including using its reasonable best efforts to do the following: (Ai) ~~to maintain~~ furnishing Buyer with such financial information set forth in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to paragraph number 5 of the Debt Commitment Letter (the “Required Financial Information”) and other customary financial information as reasonably requested by Buyer to enable Buyer to prepare pro forma financial statements, in each case, to the extent customary and reasonably required pursuant to such Debt Financing ~~Agreements”~~and to the extent reasonably available; (ii) on causing a member of the ~~terms~~ Company’s management team, with appropriate seniority and ~~conditions that are not materially less favorable~~ expertise, at reasonable times and upon reasonable notice, to ~~Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and~~ participate in a ~~manner that will not impede the ability~~ limited number of ~~the parties~~ presentations to ~~consummate the Merger, all conditions to receipt of the full amount of~~ and meetings with the Debt Financing at Sources; (iii) (A) assisting with the ~~Closing set forth therein that are within its control~~ preparation of customary syndication documents and materials required or ~~subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate~~ reasonably requested by the Debt Financing Sources in connection with the Debt Financing; provided, however, that any such customary syndication documents and materials shall contain disclosure and pro forma financial statements reflecting Buyer as the obligor; and (B) executing and delivering customary authorization letters relating to the Debt Financing; (iv) (A) to assist in the preparation of definitive financing documentation and the schedules and exhibits thereto (including loan agreements, guarantees, collateral agreements, hedging arrangements, and customary officer’s and other closing certificates) as may reasonably be requested; and (B) to facilitate the pledging of collateral, it being understood that such documents will not take effect until on or after the Closing; (v) obtaining any Lien releases, terminations and instruments of discharge (including UCC termination statements); and (vi) furnishing Buyer promptly with all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, as amended, that has been reasonably requested by Buyer in writing, at least 10 days prior to the Closing Date. (c) Notwithstanding the requirements of Section 6.10(b), (i) Buyer shall be solely responsible for provision of any post-Closing pro forma financial information, including cost savings, synergies, capitalization, ownership or other pro forma adjustments and any financial projections of the Company for and after the Closing, (ii) neither the Company nor the Subsidiary or their respective Representatives shall be required to enter into any certificate, document, agreement or instrument which will be effective prior to the Closing, (Diii) none of Seller, the Company or the Subsidiary will be required to ~~comply~~ pay any commitment or other similar fee or incur any other liability in connection with ~~its obligations under~~ the Debt ~~Commitment Letter~~Financing prior to the Closing, and (Eiv) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub nothing herein shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.47 (d) ~~Parent shall have the right to substitute the net cash proceeds received~~ Buyer will promptly, upon request by ~~Parent after the date hereof~~ Seller, reimburse Seller for all reasonable out-of-pocket costs and ~~prior to the Closing from consummated offerings or other incurrences of debt~~ expenses (including ~~notes~~reasonable attorneys’ fees) incurred by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation ofSeller, the ~~Debt Commitment Letter, (w)~~ Company or the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid Subsidiary in connection with the ~~transactions~~ cooperation of Seller, the Company and the Subsidiary contemplated by ~~this Agreement~~Section 6.10(b). Buyer will indemnify and hold harmless Seller, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company~~. If commitments under~~ , the ~~Debt Commitment Letter have been reduced to zero~~ Subsidiary and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with the ~~preceding sentence, the obligations~~ arrangement of the ~~Company~~ Financing (including any action taken in accordance with this Section 6.10) and ~~its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or~~ any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid information used in connection ~~with the transactions contemplated by this Agreement and all conditions precedent~~ therewith. 6.11 R&W Policy. Prior to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, ~~Parent~~ Buyer shall ~~provide all funds required~~ obtain the R&W Policy, and Seller agrees to ~~effect~~ reasonably cooperate with Buyer in connection therewith, provided that such R&W Policy will contain customary terms and conditions, including without limitation, the ~~repayment~~ insurer thereunder expressly waiving and agreeing not to pursue, directly or indirectly, any subrogation rights against the Seller or its Affiliates (other than in connection with fraud by Seller or its Affiliates) with respect to any claim made by any insured thereunder. From and after the issuance of ~~all indebtedness under~~ the ~~Company Credit Agreement~~ R&W Policy, Buyer shall not amend the R&W Policy in ~~full~~ any manner adverse to Seller without the Seller’s prior written consent or which would otherwise give the insurer thereunder a right to pursue, directly or indirectly, any subrogation rights against Seller or its Affiliates (other than in ~~accordance~~ connection with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s fraud by Seller or any of its Affiliates~~’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement~~).

Appears in 1 contract

Sources: Membership Interest Purchase Agreement (Black Box Corp)

Financing. (a) ~~Subject to the terms and conditions of this Agreement,~~ Parent shall use its reasonable best efforts to ~~take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and~~ obtain the ~~Debt~~ proceeds of the Financing on the terms and conditions described in the ~~Debt~~ Commitment Letter ~~pursuant to the terms thereof~~ (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, provided that Parent may amend the ~~Debt~~ Commitment Letter to add ~~or replace~~ lenders, lead arrangers, bookrunners, syndication agents or similar entities or otherwise amend the Commitment Letter so long as such action would not reasonably be expected to delay or prevent the ~~Closing).~~ Closing and the terms are not less beneficial to Parent ~~shall promptly deliver to~~ or the Company ~~true~~with respect to conditionality or amount of funding on the Closing than those in the Commitment Letter as in effect on the date of this Agreement), ~~complete and correct copies of any such amendment, modification or replacement. (b) Parent shall, and shall cause its Affiliates and Representatives to, use~~ including using its reasonable best efforts to (Ai) to maintain in effect the ~~Debt~~ Commitment ~~Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)~~Letter, (Bii) satisfy on a timely basis all conditions applicable to ~~negotiate and~~ funding of the Financing, (iii) enter into definitive agreements with respect thereto and (iv) comply with its obligations, and enforcing its rights, under the Commitment Letter. Parent shall provide the Company prompt written notice of any material breach by any party to the ~~Debt~~ Commitment Letter (or commitments for any alternative financing obtained in accordance with this Section 6.5) of which Parent becomes aware or any termination of the ~~“Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt~~ Commitment ~~Letter, (C) to satisfy on a timely basis~~ Letter (or ~~obtain the waiver of~~commitments for any alternative financing obtained in accordance with this Section 6.5). Parent shall, ~~and in a manner that will not impede the ability~~ upon request of the ~~parties~~ Company from time to ~~consummate the Merger~~time, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep inform the Company ~~informed on a current basis and~~ in reasonable detail of the status of its efforts to arrange the ~~Debt Financing, and, promptly following request by~~ Financing (or alternative financing obtained in accordance with this Section 6.5). In the ~~Company, provide to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any~~ event ~~within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii)~~ that Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that ~~it will not provide, or it refuses to provide, all or~~ any portion of the ~~Debt~~ Financing is unavailable in the manner or from the sources contemplated by in the ~~Debt~~ Commitment ~~Letter on the terms set forth therein~~Letter, Parent will use its reasonable best efforts to obtain alternative financing for such portion from alternative sources. Parent shall ~~promptly provide~~ not agree to nor permit any ~~information reasonably requested by~~ amendment, modification or waiver (other than a waiver of a condition to the Financing) of the Commitment Letter, any other agreement, arrangement or understanding relating to the Financing or the definitive agreements relating to the Financing that is materially adverse to Parent or the Company ~~relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to,~~ without the Company’s prior written consent of (not to be unreasonably withheld, conditioned or delayed). Notwithstanding the ~~Company~~foregoing, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received compliance by Parent ~~after the date hereof and prior~~ with this Section 6.5 shall not relieve Parent of its obligation to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with consummate the transactions contemplated by this Agreement, whether or not the Financing is available. (xb) ~~the proceeds~~ The Company shall, and shall cause each of ~~such debt offerings or other incurrences have been received by Parent in cash~~its Subsidiaries to, use its reasonable best efforts to provide, at Parent’s sole cost and expense, (yand cause its Representatives to provide) ~~Parent promptly notifies the Company of~~ such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero reasonable cooperation in connection with the ~~preceding sentence,~~ arrangement and syndication of the ~~obligations~~ Financing as may be reasonably requested by Parent (provided that such cooperation does not unreasonably interfere with the operations of the Company and its ~~Subsidiaries pursuant to Section 6.14 shall no longer be in effect~~Subsidiaries). Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid Such reasonable cooperation in connection with the ~~transactions contemplated by this Agreement and all conditions precedent to funding of such financing are~~Financing shall include, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtainedwithout limitation, (i) ~~any reference~~ participating in ~~this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause~~ a reasonable number of meetings, presentations, road shows, due diligence sessions, drafting sessions and sessions with prospective lenders, investors and rating agencies; (ii) ~~below~~assisting with the preparation of materials for rating agency presentations, ~~(ii) any reference~~ bank information memoranda and similar documents required in ~~this Agreement to~~ connection with the ~~“Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time~~ Financing, including execution and delivery of customary representation letters in ~~question and each New Debt Commitment Letter to the extent then in effect, and~~ connection with bank information memoranda; (iii) ~~any reference in this Agreement~~ providing reasonable and timely assistance with the preparation of business projections, pro forma financial information and similar information and materials; (iv) furnishing Parent and its financing sources with (A) the audited consolidated financial statements of the Company for the fiscal year ended December 31, 2009, and the notes and schedules thereto, no later than 60 days prior to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, (B) the unaudited consolidated financial statements of the Company for any subsequent quarterly period ended no less than 45 days prior to the Closing Date, and the unaudited consolidated financial statements for the same period of the prior fiscal year, no later than 45 days after the end of the relevant fiscal quarter and (C) all financial information related to the Company reasonably requested by Parent ~~shall provide all funds~~ and reasonably necessary for Parent to produce the pro forma financial statements required to be delivered pursuant to the Commitment Letter or any alternative financing; (v) using commercially reasonable efforts to effect the ~~repayment~~ timely delivery of ~~all indebtedness~~ drafts of customary comfort (including “negative assurance” comfort) letters by the auditor of the Company which such auditor is prepared to issue upon completion of customary procedures; (vi) using commercially reasonable efforts to assist Parent to obtain customary legal opinions, appraisals, surveys, title insurance and other documentation and items relating to real estate collateral under the Financing as reasonably requested by Parent and, if requested by Parent, to cooperate with and assist Parent in obtaining such documentation and items; (vii) providing reasonable and customary management and legal representations to auditors; (viii) executing and delivering, as of the Effective Time, any pledge and security documents, other definitive financing documents, or other certificates, legal opinions or documents, as may be reasonably requested by Parent (including consents of accountants for use of their reports in any materials relating to the Financing) and otherwise reasonably facilitating the pledging of collateral; and (ix) not commencing or effecting any offering, placement or arrangement of any debt securities or bank financing (or permitting any such offering, placement or arrangement by the Company ~~Credit Agreement~~ to occur on its behalf); provided that (i) the Company shall not be required to pay any commitment or other similar fee or enter into any definitive agreement or incur any other liability or other obligation in ~~full in accordance~~ connection with the ~~Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything~~ Financing prior to the ~~contrary contained herein, Parent’s obligations hereunder are not subject to~~ Closing and (ii) no Person that is a ~~condition regarding Parent’s~~ director of the Company or any of its ~~Affiliates’ obtaining funds~~ Subsidiaries shall be required to ~~consummate~~ take any action in such capacity with respect to the ~~Merger~~ Financing (or any alternative financing) prior to the Closing; provided , further , that the Company shall cooperate with Parent, if requested by Parent, to appoint Parent’s designees to the Board of Directors or similar governing bodies of the Subsidiaries of the Company, as of the Closing Date, for the purpose of taking corporate action related to the Financing as of the Closing. Without limiting the foregoing, the Company shall provide to Parent all reasonably available information relating to the Company reasonably requested by Parent and reasonably necessary for the preparation of (A) a customary confidential offering memorandum with respect to the syndication of the credit facilities contemplated by the Commitment Letter, and (B) a complete customary preliminary offering memorandum relating to the issuance of the securities contemplated by the Commitment Letter. Parent shall indemnify and hold harmless the Company, its Subsidiaries and Representatives from and against any and all losses, costs, damages, liabilities and expenses incurred by any of them in connection with the arrangement of the Financing (or any alternative financing) and the ~~transactions contemplated~~ utilization of any information in connection therewith and all other actions taken by the Company, its Subsidiaries and their Representatives pursuant to this ~~Agreement~~Section 6.5(b). Parent shall, from time to time, reimburse the Company for any and all reasonable out-of-pocket expense incurred by the Company and its Subsidiaries in connection with its compliance with this Section 6.5(b), promptly upon receipt of the Company’s written request therefor.

Appears in 1 contract

Sources: Merger Agreement (Vought Aircraft Industries Inc)

Financing. (a) ~~Subject~~ Each of Parent and Sub shall use, and shall cause their respective Affiliates and each of its and their respective Representatives to use, their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable to arrange, obtain and consummate the Debt Financing upon the terms and subject only to the conditions (including, to the extent required, the full exercise of any “flex” provisions) expressly set forth in the Debt Commitment Letters, including using reasonable best efforts (i) to maintain in full force and effect the Debt Commitment Letters in accordance with the terms thereof until the consummation of the transactions contemplated hereby, (ii) to promptly negotiate, enter into and deliver definitive agreements with respect to the Debt Financing (collectively, the “Debt Financing Agreements”) upon the terms and subject only to the conditions expressly set forth in the Debt Commitment Letters (including any applicable “flex” provisions) and further subject to any amendments, modifications or supplements thereto, or replacements or waivers thereof, in each case, not prohibited by this Agreement, (iii) to satisfy on a timely basis (but in any event, at or prior to Closing) all conditions to the funding of the full amount of the Debt Financing that are within Parent’s or Sub’s control, and (iv) to enforce its rights under or with respect to the Debt Commitment Letters and the Debt Financing Agreements. (b) Neither Parent nor Sub shall permit any amendment, supplement or other modification to, or grant any waiver of any terms under, the Debt Commitment Letters, in each case without the prior written consent of the Company (not to be unreasonably withheld, conditioned, or delayed), if such amendment, supplement, or other modification or waiver would or would reasonably be expected to (A) reduce the aggregate amount of the Debt Financing (including by increasing the amount of fees to be paid or original issue discount) to an amount that, when taken together with the proceeds of the Equity Financing (including any increases to the Equity Financing), would be less than the Required Amount, (B) impose new or additional conditions to the funding of the full amount of the Debt Financing on the Closing Date (or otherwise expand or modify any existing condition to the funding of the Debt Financing set forth in the Debt Commitment Letters) in a manner that could prevent, impede or delay the consummation of the Debt Financing on the Closing Date, or (C) (i) prevent, impede or delay the consummation of the Debt Financing on the Closing Date, or (ii) adversely impact the ability of Parent to enforce its rights under the Debt Commitment Letters or the Debt Financing Agreements; provided that Parent and Sub may amend, supplement, replace, substitute or modify the Debt Commitment Letters to the extent not prohibited by this Section 6.11(b) (including to add additional agents, co-agents, lenders, lead arrangers, joint bookrunners, syndication agents, managers or similar entities that have not executed such Debt Commitment Letters as of the date hereof, together with any conforming or ministerial changes related thereto). Parent shall deliver to the Company copies of any amendment, supplement or other modification, or waiver of any terms under, to the Debt Commitment Letters, promptly (and in any event within two business days) following receipt. (c) Upon reasonable request of the Company, Parent shall keep the Company informed on a reasonably current basis in reasonable detail of the status of its efforts to arrange the Debt Financing; provided, however, that nothing in this sentence shall require Parent to disclose any information that is legally privileged or the disclosure of which would result in the breach of any of Parent or Sub’s, as applicable, confidentiality obligations set forth in the Debt Commitment Letters (as in effect on the date hereof). Without limiting the generality of the foregoing, Parent and Sub shall give the Company prompt written notice (and in any event within three business days following becoming aware thereof) (w) of any actual or alleged breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any breach or default) by Parent or Sub, or to the knowledge of Parent or Sub, any other person party to any of the Debt Commitment Letters or the Debt Financing Agreements, (x) of the receipt of any written notice or other written communication from any Debt Financing Source with respect to any actual or alleged breach, default, termination or repudiation by any party to any of the Debt Commitment Letters or any Debt Financing Agreement or any provisions of the Debt Commitment Letters or any Debt Financing Agreements (including any actual withdrawal, termination or any material change in the terms of (including the amount of) the Debt Financing), (y) of any material dispute or disagreement between or among the parties to any of the Debt Commitment Letters or the Debt Financing Agreements with respect to the obligation to fund the Debt Financing or the amount of the Financing to be funded at Closing, or (z) if any time for any reason either Parent or Sub believes in good faith that it will not be able to (or is not reasonably likely to be able to) obtain, all or any portion of the Debt Financing upon the terms and subject only to the conditions expressly set forth in the Debt Commitment Letters in the manner or from the sources contemplated by any of the Debt Commitment Letters or the Debt Financing Agreements. As soon as reasonably practicable, but in any event within two (2) business day of the date the Company delivers to Parent or Sub a written request therefor, Parent and Sub shall provide any information reasonably requested by the Company relating to any circumstance referred to in clause (w), (x), (y) or (z) of the immediately preceding sentence or the status of the Debt Financing. (d) If any portion of the Debt Financing otherwise becomes unavailable, and such portion is required to fund the Required Amount on the Closing Date, Parent and Sub shall, and shall cause their Affiliates to, use ~~its~~ their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange, obtain and consummate, at its sole expense, in replacement thereof alternative financing from the same or ~~proper~~ alternative sources in an amount that, when taken together with the proceeds of the Equity Financing (including any increases to ~~arrange and obtain~~ the ~~Debt Financing~~ Equity Financing), is sufficient to fund the Required Amount on ~~the~~ terms and conditions ~~described~~ not less favorable, taken as a whole, to the Company or Parent (in the reasonable judgment of Parent) than the terms set forth in the Debt Commitment ~~Letter pursuant to the terms thereof~~ Letters (including the flex provisions thereof) as promptly as reasonably practicable following the occurrence of such event (the “Alternative Financing”). Any reference in this Agreement to (1) the “Debt Financing” shall include any such Alternative Financing, (2) the “~~market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the~~ Debt Commitment ~~Letter in~~ Letters” shall include the ~~event of a breach thereof by~~ commitment letters and the ~~financing provider(s~~corresponding fee letter with respect to any such Alternative Financing, (3) ~~thereunder. Parent shall not, without~~ the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the “Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or Agreements” shall include the definitive agreements with respect ~~thereto~~ to any such Alternative Financing and (~~provided~~4) the “Debt Financing Sources” shall include the financing institutions contemplated to provide any such Alternative Financing. Notwithstanding anything to the contrary contained in this Agreement, ~~that~~ nothing contained in this Section 6.11 (d) shall require, and in no event shall the reasonable best efforts of Parent ~~may amend~~ or Sub be deemed or construed to require, either Parent or Sub to pay any fees or any interest rates applicable to the Debt Financing in excess of those contemplated by the Debt Commitment ~~Letter~~ Letters (including the flex provisions), but other than de minimis amounts, or agree to ~~add~~ terms (including the flex provisions) that are less favorable, taken as a whole, to Parent, Sub or ~~replace lenders~~the Surviving Corporation than the terms contemplated by the Debt Commitment Letters (determined after giving effect to all amendments and other modifications permitted pursuant to the “market flex” provisions of the Debt Commitment Letters as if such amendments and other modifications had been implemented to the maximum extent permitted thereunder) (in either case, ~~lead arrangers, bookrunners, syndication agents~~ whether to secure waiver of any conditions contained therein or ~~similar entities so long as such action would not reasonably be expected to delay or prevent the Closing~~otherwise). Parent shall ~~promptly~~ deliver to the Company true, correct and complete and correct copies of any such amendment, modification or replacement. (b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all ~~executed Debt~~ agreements related to such Alternative Financing ~~Agreements.~~ (cincluding commitment letters, engagement letters, side letters and fee letters (subject to customary redaction of fee amounts and other commercially sensitive economic terms, so long as such redactions do not extend to any terms that could affect the conditionality, availability, amount, timing or termination of the Financing)) ~~Without limiting the foregoing, Parent agrees to notify the Company promptly,~~ promptly (and in any event within two business days) following execution thereof. Parent and Sub acknowledge and agree that the obtaining of the Financing, or any Alternative Financing, is not a condition to Closing. (e) Prior to the Closing, the Company shall use reasonable best efforts to provide to Parent and Sub, and shall cause each of its Subsidiaries to use reasonable best efforts to provide, and shall use its reasonable best efforts to cause its Representatives, including legal and accounting, to provide, in each case, at the sole cost and expense of Parent and Sub, all cooperation reasonably requested in writing by Parent and Sub that is customary in connection with arranging, obtaining and syndicating debt financings similar to the Debt Financing, including using reasonable best efforts to: (i) assist with the preparation of Offering Documents; (ii) furnish to Parent as promptly as reasonably practicable with the Required Information and all other available pertinent financial information relating to the Company and the Company Subsidiaries (including their businesses, operations, financial projections and prospects) as may be reasonably requested by Parent to assist in preparation of the Offering Documents; (iii) having the Company designate members of senior management of the Company to execute customary authorization letters with respect to the Offering Documents and upon reasonable written notice, participate in a reasonable number of meetings and presentations to or with prospective lenders, due diligence sessions (including requesting accountants to participate in such due diligence sessions), drafting sessions and sessions with ratings agencies in connection with the Debt Financing, including direct contact between appropriate members of senior management of the Company and the Company Subsidiaries and Parent’s Debt Financing Sources and other potential lenders in the Debt Financing (all such meetings, presentations or sessions may be teleconferences in lieu of such meetings); (iv) requesting the Company’s independent auditors to cooperate with Parent’s reasonable best efforts to obtain customary accountant’s comfort letters (including “negative assurance”) and consents from the Company’s independent auditors; (v) reasonably assist Parent in obtaining any corporate and family ratings from any ratings agencies contemplated by the Debt Commitment Letters; (vi) assist in the preparation, registration or execution of, definitive financing documents, including guarantee and collateral documents, customary closing certificates (including a certificate of an appropriate officer of the Company with respect to solvency of the Company and the Company Subsidiaries to the extent required by, or necessary to satisfy conditions precedent under, the Debt Commitment Letters), instruments, filings, security agreements and other documents as may be reasonably requested by Parent and other matters ancillary to, or required in connection with the Debt Financing to the extent required on the Closing Date by the terms of the Debt Commitment Letters (but in no event shall Company be required to execute documents or arrangements that would be effective prior to Closing); (vii) assist with requesting from the Company’s existing lenders the Payoff Letter (including the lien releases referenced therein); and (viii) furnish to Parent at least four (4) business days prior to the Closing Date to the extent reasonably requested by Parent within 10 business days prior to the Closing Date (1) all documentation and other information about the Company and its Subsidiaries customarily required by Governmental Entities with respect to the Debt Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, as amended) and (2) ~~Business Days~~if the Company qualifies as a “legal entity customer” under 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”), if a certification regarding individual beneficial ownership solely to the extent required by the Beneficial Ownership Regulation in relation to the Company. Notwithstanding anything to the contrary in this Agreement, (i) the Company and the Company Subsidiaries shall not be required to provide any cooperation pursuant to this Section 6.11 (e) to the extent it would unreasonably interfere with the business or ongoing operations of the Company or its Subsidiaries, (ii) the Company and the Company Subsidiaries shall not be required to pay any commitment or other similar fee or incur any other liability (including due to act or omission by the Company, its Subsidiaries or any of the their respective Affiliates or Representatives), or expenses (including reasonable attorney’s and accounting fees) or give any indemnity in connection with the Debt Financing (other than expenses promptly reimbursed by Parent at or prior to Closing in accordance with the terms of this Section 6.11), (iii) none of the Company or any of its Subsidiaries, or any Persons who are directors of the Company or any of its Subsidiaries at any time prior to the Closing ~~Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware~~ that do not continue in such role as of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably Closing shall be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to ~~be paid in connection with~~ pass resolutions or consents to approve or authorize the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount execution of the Debt Financing, ~~together with other cash~~ (iv) the Company and ~~cash equivalents available to Parent, is sufficient to pay all amounts~~ the Company Subsidiaries shall not be required to provide any cooperation pursuant to this Section 6.11 (e) to the extent it would (A) cause any covenant, representation or warranty in this Agreement to be ~~paid~~ breached (unless otherwise agreed or waived by the parties hereto in accordance with this Agreement); (B) cause any closing condition set forth in Article VII to fail to be satisfied or otherwise cause the breach of this Agreement or any Contract to which the any of the Company or its Subsidiaries is a party; (C) require any officer, director or other Representative of the Company or any of its Subsidiaries to deliver any certificate that such officer, director other Representative believes, in good faith, contains any untrue certifications or requires the Company or its Subsidiaries to give or deliver any legal opinion or other opinion of counsel; (D) require the Company or its Subsidiaries to provide any information that is prohibited or restricted by applicable Law or applicable confidentiality undertaking or that constitutes privileged information or attorney-client work product (provided that the Company, its Subsidiaries or any of its or their respective officers, employees, advisors and other Representatives shall take reasonable measures to permit access or disclosure in compliance hereunder in a manner that avoids any such harm or consequence); or (E) require the Company or its Subsidiaries to take any action that is prohibited or restricted by, or will conflict with or violate, its organizational documents, or would result in a violation or breach of, or default under, any agreement or Contract to which the Company or any of its Subsidiaries is a party. Parent and Sub agree that any information regarding the Company or any of its Subsidiaries or Affiliates contained in any Offering Document or other materials in connection with the ~~transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable~~ Debt Financing shall be subject to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.prio

Appears in 1 contract

Sources: Merger Agreement (Virtusa Corp)

Financing. (a) ~~Subject to the terms and conditions of this Agreement,~~ Parent shall use its, and shall cause its controlled Affiliates to use their, reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable ~~or proper~~ to ~~arrange~~ consummate and obtain the ~~Debt~~ Financing on the terms and ~~conditions described in the Debt Commitment Letter pursuant~~ subject only to the ~~terms thereof~~ conditions (including ~~any~~ the market “~~market~~ flex” provisions) set forth in the Commitment Papers contemporaneously with the Closing, including by using its reasonable best efforts to ~~seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s~~(i) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement. (b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the ~~Debt~~ Commitment ~~Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)~~Papers, (Bii) to negotiate and enter into definitive agreements with respect to the ~~Debt Commitment Letter~~ Financing (the “~~Debt Financing~~ Definitive Agreements”) on consistent with the terms and conditions ~~that are not materially less favorable to Parent than those~~ contained in the ~~Debt~~ Commitment ~~Letter,~~ Papers and (Ciii) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the ~~Closing, (D) to~~ Closing Date all conditions in the Commitment Papers and the Definitive Agreements and comply with its obligations ~~under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time~~thereunder. In the event that all conditions ~~precedent expressly set forth~~ contained in the ~~Debt~~ Commitment ~~Letter~~ Papers or the Definitive Agreements (other than the consummation of the Merger and other than those that by their nature are to be satisfied at the Closing) have been ~~or, upon funding of the Debt Financing will be, satisfied~~satisfied or waived, Parent ~~and Sub~~ shall use ~~their~~ its reasonable best efforts to in all material respects enforce ~~their~~ its rights ~~under~~under the Commitment Papers, ~~and~~ including using reasonable best efforts to cause the ~~Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing~~ Lenders to comply with their respective obligations ~~under the Debt Commitment Letter and definitive financing agreements and~~ thereunder, including to fund ~~on or before~~ the ~~Effective Time the Debt~~ Financing. Parent shall not, without the prior written consent of the Company, permit any termination of or amendment, supplement or modification to be made to, or grant any waiver of any provision under, the Commitment Papers if such termination, amendment, supplement, modification or waiver would (A) reduce the aggregate amount of the Financing to an amount that, when combined with cash of the Parent, would not be sufficient to consummate the Refinancing, (B) impose new or additional conditions precedent to the availability of the Financing or otherwise expand, amend or modify any of the conditions precedent to the Financing in a manner that would reasonably be expected to prevent or materially impede or delay the funding of the Financing, (C) adversely impact the ability of Parent to enforce its rights against the other parties to the Commitment Papers or (D) would otherwise reasonably be expected to prevent or materially impede or delay the funding of the Financing. Parent shall promptly deliver to the Company true and complete copies of any amendment, modification, supplement, consent or waiver to or under any Commitment Papers promptly upon execution thereof. (b) Parent shall keep the Company informed on a ~~current~~ reasonably prompt basis and in reasonable detail of the status of its efforts to arrange the ~~Debt~~ Financing~~, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. (c)~~ . Without limiting the generality of the foregoing, Parent ~~agrees to notify~~ shall give the Company ~~promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date~~ prompt written notice of (i) any actual or threatened breach, default, termination, cancellation or repudiation by any party to the ~~Debt~~ Commitment ~~Letter is terminated for~~ Papers and the receipt of any ~~reason~~written notice or other written communication from any Financing Source with respect to any breach, default, termination, cancellation or repudiation by any party to the Commitment Papers, or (ii) ~~Parent becomes aware~~ the occurrence of ~~any breach~~ an event or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would development that could reasonably be expected to adversely affect the ~~availability~~ ability of ~~the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses~~ Parent to ~~provide,~~ obtain all or any portion of the ~~Debt~~ Financing ~~contemplated by the Debt Commitment Letter~~ on the ~~terms set forth therein~~Closing Date to the extent necessary to fund the Refinancing. As soon as reasonably practicable after the Company delivers to Parent a written request, Parent shall ~~promptly~~ provide any information reasonably requested by the Company relating to any ~~circumstances~~ circumstance referred to in ~~this Section 6.13(c)~~the immediately preceding sentence. ~~Parent shall not, nor shall it permit any of its Affiliates to, without~~ If the ~~prior written consent of~~ Financing becomes unavailable on the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof terms and ~~prior to the Closing from consummated offerings or other incurrences of debt~~ conditions (including ~~notes) by Parent for all or~~ any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (applicable market “Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (iprovisions) ~~any reference in this Agreement to the “Debt Financing” shall include the debt financing~~ contemplated by the ~~Debt~~ Commitment ~~Letter~~ Papers (other than solely as ~~modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by~~ a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment result of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, ParentCompany’s ~~obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.~~material

Appears in 1 contract

Sources: Merger Agreement (Science Applications International Corp)

Financing. (a) ~~Subject to the terms and conditions of this Agreement, Parent~~ The Purchaser shall use ~~its~~ reasonable best efforts to ~~take,~~ take (or cause to be taken, ) all actions ~~and to do, or cause to be done, all things~~ necessary, proper or advisable ~~or proper~~ to arrange and ~~obtain~~ consummate the Debt Financing on or prior to the Closing Date on the terms and conditions described in the Debt Commitment Letter. The Purchaser will not permit any termination, amendment or other modification (other than amendments or joinders to add additional lenders, arrangers, bookrunners, agents, managers, or other Debt Financing Sources in the manner contemplated by the terms of the Debt Commitment Letter (as in effect on the date of this Agreement)) to be made to, or any waiver of any provision or remedy pursuant to, the Debt Commitment Letter, in each case, without the Seller’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed) if such amendment, modification or waiver would, or would reasonably be expected to: (A) reduce the aggregate amount of the net proceeds of the Committed Debt Financing; (B) impose new or additional conditions or contingencies applicable to the funding of the Debt Financing; (C) otherwise expand, amend or modify any of the conditions to the receipt of the Committed Debt Financing or any other terms to the Committed Debt Financing in a manner that, in each case with respect to this clause (C), would reasonably be expected to (I) delay in any material respect or prevent the occurrence of the Closing or (II) make the satisfaction of the conditions to obtaining the Committed Debt Financing materially less likely to occur in any respect; or (D) adversely impact the ability of the Purchaser or any Seller, as applicable, to enforce its rights against the Debt Financing Sources. (b) The Purchaser shall: (i) upon the request of the Seller, keep the Seller informed on a reasonably current basis in reasonable detail of all material activity concerning the Debt Financing (including the status of its efforts to obtain the Debt Financing); and (ii) promptly (and no later than two (2) Business Days after such execution) provide the Seller with copies of all executed amendments, joinders, modifications or replacements of the Debt Financing Commitment (it being understood that any amendments, joinders, modifications or replacements shall only be as permitted herein). Without limiting the generality of the foregoing, the Purchaser shall promptly (and in any event, within two (2) Business Days) notify the Seller in writing: (A) of any actual or threatened (in writing) withdrawal, repudiation, termination, material breach or material default (or any event or circumstance that could reasonably be expected to give rise to any withdrawal, repudiation, termination, material breach or material default) by any party to the Debt Financing Commitment of which the Purchaser becomes aware; and (B) if for any reason the Purchaser at any time reasonably believes it will not be able to timely obtain all or any material portion of the Committed Debt Financing on the terms, in the manner or from the sources contemplated by the Debt Financing Commitment. (c) The Purchaser acknowledges and agrees that obtaining the Debt Financing is not a condition to the Closing. If any or all of the Debt Financing has not been obtained, the Purchaser shall continue to be obligated to consummate the transactions on the terms contemplated by this Agreement and the Ancillary Agreements and subject only to the satisfaction or waiver of the conditions to Closing set forth in Section 8.02 and to the Purchaser’s rights under Section 10.01, regardless of whether the Purchaser has complied with all of its other obligations with respect to the Debt Financing under this Agreement (including its obligations under this Section 5.23). Subject to the terms ~~thereof~~ and conditions of this Agreement (~~including any “market flex” provisions~~including, without limitation, the limited right of the Purchaser to amend the Debt Commitment Letter subject to the limitations set forth in clause (a) ~~including using its reasonable best efforts~~ above), the Purchaser agrees to ~~seek to enforce~~ exercise its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing ~~or (B) imposes new or additional conditions~~ Failure Event which the Purchaser determines to not be in accordance with the ~~initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision~~ terms of the Debt Commitment ~~Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date~~Letter. The Purchaser will fully pay, or ~~(y) adversely affect the ability of Parent~~ cause to ~~enforce its rights against~~ be fully paid, all commitment or other ~~parties~~ fees arising pursuant to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as ~~such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete~~ and ~~correct copies of any such amendment, modification or replacement~~when they become due. (bd) ~~Parent shall~~From the date of this Agreement to the earlier to occur of the Closing Date and the date this Agreement is terminated in accordance with its terms, the Seller shall use its commercially reasonable efforts to, and shall use its commercially reasonable efforts to cause ~~its Affiliates and Representatives~~ the Acquired Companies to, ~~use its reasonable best efforts~~ provide, as promptly as practicable, such cooperation as is (Ax) ~~to maintain in effect~~ reasonably requested by the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) Purchaser to satisfy on a timely ~~basis (~~basis, the Purchaser’s or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its Affiliates’ obligations under the Debt Commitment Letter, ~~and~~ including (Ewithout limitation) ~~to consummate the Debt Financing at or prior to the Effective Time. In the event that~~ all conditions ~~precedent expressly~~ set ~~forth~~ out in the Debt Commitment Letter ~~have been or, upon funding~~ applicable to the Purchaser for obtaining the financing and (y) reasonably requested by the Purchaser or its Affiliates in connection with the arrangement (and consummation) of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, ~~and~~including using commercially reasonable efforts to: (i) furnish to the Purchaser and the Debt Financing Entities with financial and other information or documents related to the Acquired Companies and necessary for the preparation of customary bank information memoranda, ~~promptly following request~~ lender presentations, prospectuses, offering memorandums and road show presentations and similar documents relating to the Debt Financing; provided that neither Seller not the Acquired Companies shall be required to create any financial information or other documents not currently in the possession of Seller and its Affiliates or the Acquired Companies; (ii) upon reasonable prior notice and at reasonable times during regular business hours and at locations to be mutually agreed, cause members of management of the Acquired Companies to participate in a reasonable number of meetings, due diligence sessions (including accounting due diligence sessions), drafting sessions, and conference calls and presentations with prospective lenders, investors, underwriters, placement agents and initial purchasers, and a reasonable number of sessions with the ratings agencies, in each case in connection with the Debt Financing and only to the extent customarily needed for financings of the types contemplated by the ~~Company~~Debt Financing; (iii) cause members of management of the Acquired Companies to reasonably (A) assist the Purchaser in its preparation of any bank information memoranda, ~~provide~~ prospectuses, offering memorandums, roadshow presentations and related presentations to the ~~Company copies~~ extent customarily needed for financings of ~~all executed~~ the types contemplated by the Debt Financing ~~Agreements.~~ and 60 assist in identifying any portion of the information set forth in any of the foregoing that would constitute material, non-public information, (cB) ~~Without limiting~~ deliver customary authorization letters with respect to the ~~foregoing~~bank information memoranda; provided that any related materials shall contain customary exculpatory provisions in favor of the Seller, ~~Parent agrees~~ its Affiliates and their respective Representatives, and (C) assist the Purchaser in its preparation of materials for rating agency presentations, provided that any such bank information memoranda, lender presentations, prospectuses, offering memorandums, roadshow presentations or similar documents that includes disclosure and financial statements with respect to ~~notify~~ the ~~Company promptly~~Business shall only reflect the Purchaser as the obligor(s) and no such bank information memoranda, lender presentations, prospectuses, offering memoranda, road show presentations or materials shall be issued by the Seller or the Acquired Companies, and in ~~any event within two~~ each case of clauses (A) through (C), only to the extent customarily needed for financings of the types contemplated by the Debt Financing, it being agreed that information and assistance will not be required relating to (1) the proposed aggregate amount of debt and equity financing, together with assumed interest rates, dividends (if any) and fees and expenses relating to the incurrence of such debt or equity financing, (2) any post-closing or pro forma cost savings, synergies, capitalization, ownership or other pro forma adjustments desired to be incorporated into any information used in connection with any Debt Financing or (3) any financial information related to the Purchaser or any of its Subsidiaries or any adjustments that are not directly related to the acquisition of the Acquired Companies by the Purchaser; (iv) provide the Purchaser, at least three (3) Business ~~Days~~Days prior to Closing, if all documentation and other information with respect to the Acquired Companies as shall have been reasonably requested in writing by the Purchaser at ~~any time~~ least ten (10) Business Days prior to the Closing Date ~~(i) the Debt Commitment Letter~~ that is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, required in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of connection with the Debt Financing by ~~reducing commitments~~ regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the U.S.A. Patriot Act of 2001 and the requirements of 31 C.F.R. §1010.230; and (v) facilitate the preparation of definitive documentation for the Debt ~~Commitment Letter~~Financing (including any credit agreement, guarantees, pledge and security documents and perfection certificates, and disclosure schedules to any of the foregoing and the pledging of collateral); provided that (vA) ~~such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount~~ none of the ~~Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to~~ documents or certificates shall be ~~paid~~ executed and/or delivered except in connection with the ~~transactions contemplated by this Agreement~~Closing, (xB) the ~~proceeds~~ effectiveness thereof shall be conditioned upon, or become operative after, the occurrence of ~~such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies~~ the ~~Company of such substitution and reduction~~ Closing and (zC) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” liability shall be ~~deemed to include~~ imposed on the ~~Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect~~Seller, ~~and (iii)~~ any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Acquired Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of ~~its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement~~their respective officers or employees involved).

Appears in 1 contract

Sources: Purchase and Sale Agreement (Greif, Inc)

Financing. (a) Subject to the terms and conditions of this Agreement, Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable ~~or proper~~ to arrange and obtain the ~~Debt~~ Financing on the terms and conditions (including the flex provisions) described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent Financing Letters, and shall ~~not, without the Company’s prior written consent,~~ not permit any ~~amendment, supplement, replacement~~ amendment or modification to be made to, or any waiver of any provision or remedy under, the ~~Debt Commitment Letter~~ Financing Letters if such amendment, ~~supplement, replacement,~~ modification or waiver would (Ai) ~~reduces~~ reduce the aggregate amount of the ~~cash proceeds from~~ Financing (including by changing the amount of fees to be paid or original issue discount of the Debt Financing unless the Equity Financing is increased by a corresponding amount), or (Bii) ~~imposes~~ impose new or additional ~~conditions to the initial funding~~ conditions, or otherwise ~~expands~~ amend, modify or expand any ~~of the conditions~~ conditions, to the receipt of the ~~Debt~~ Financing, in any such case of (i) or ~~otherwise expands, amends or modifies any other provision of the Debt Commitment Letter~~ (ii) above in a manner that would reasonably be expected to (xA) delay or prevent the Closing Date, (B) make the funding ~~in full~~ of the ~~Debt~~ Financing (or satisfaction of the conditions to obtaining the ~~Debt~~ Financing) ~~on the Closing Date,~~ less likely to occur or (yC) adversely ~~affect~~ impact the ability of Parent or Merger Sub or, with respect to the Equity Financing, the Company to enforce its rights against the other parties to the ~~Debt Commitment Letter~~ Financing Letters or the definitive agreements with respect ~~thereto (~~thereto, the ability of Parent or Merger Sub to consummate the Transactions or the likelihood of consummation of the Transactions; provided, however, that Parent and Merger Sub may (i) amend the Debt Commitment Letter to add ~~or replace~~ lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Commitment Letter as of the date of this Agreement or (ii) otherwise amend or replace the Debt Commitment Letter so long as (x) such action would not reasonably be expected to delay or prevent the Closing), (y) the terms are not, taken as a whole, materially less beneficial to Parent or Merger Sub, with respect to conditionality, than those in the Debt Commitment Letter as in effect on the date of this Agreement and (z) with respect to replacements, the replacement debt commitments otherwise satisfy the terms and conditions of a Alternative Debt Financing set forth below. Parent may enter into discussions regarding, and may enter into arrangements and agreements relating to, the Equity Financing to add other equity providers, on the condition that such arrangements or agreements (i) do not reduce the aggregate amount of the Equity Financing, (ii) do not impose terms or conditions that would reasonably be expected to delay or prevent the Closing Date and (iii) with respect to any such equity provider, such equity provider enters into an Equity Funding Letter on substantially the same terms and conditions as the Equity Funding Letters then in effect. Parent shall ~~promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement. (b) Parent shall, and shall cause its Affiliates and Representatives to,~~ use its reasonable best efforts to (AI) to maintain in effect the ~~Debt Commitment Letter~~ Financing Letters (~~provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided~~ including any definitive agreements entered into in ~~this Section 6.13~~connection with any such Financing Letters), (BII) satisfy on a timely basis (taking into account the Marketing Period) all conditions in the Financing Agreements applicable to Parent and Merger Sub to obtaining the Financing, (III) consummate the Equity Financing at or prior to the Closing, (IV) negotiate and enter into definitive agreements with respect to the Debt Commitment Letter ~~(the “Debt Financing Agreements”)~~ on ~~the~~ terms and conditions ~~that are not materially less favorable to Parent than those~~ (including the flex provisions) contained in the Debt Commitment ~~Letter, (C) to satisfy on a timely basis (~~Letter or ~~obtain the waiver of), and~~ consistent in ~~a manner that will not impede the ability of the parties to consummate the Merger,~~ all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in material respects with the Debt Commitment ~~Letter~~Letter (such definitive agreements, together with the Financing Letters, the “Financing Agreements”) and promptly upon execution thereof provide complete executed copies of such definitive agreements to the Company, (V) consummate the Debt Financing at or prior to the ~~Closing,~~ Closing and (DVI) ~~to comply with~~ fully enforce the counterparties’ obligations and its ~~obligations~~ rights under the ~~Debt Commitment Letter~~Financing Agreements, ~~and (E)~~ including by suit or other appropriate proceeding to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the ~~Financing Sources,~~ lenders ~~and the other persons providing or committing to provide~~ under the Debt Financing to ~~comply~~ fund in accordance with their ~~obligations under~~ respective commitments if all conditions to funding the Debt ~~Commitment Letter and definitive financing agreements and to fund on~~ Financing in the applicable Financing Agreements have been satisfied or ~~before the Effective Time the Debt Financing~~waived. Parent shall keep the Company reasonably informed on a ~~current~~ timely basis ~~and in reasonable detail~~ of the status of ~~its~~ Parent’s and Merger Sub’s efforts to arrange the ~~Debt Financing~~Financing and to satisfy the conditions thereof, ~~and~~including, ~~promptly following request by~~ upon Company’s reasonable request, (A) advising and updating the Company, ~~provide~~ in a reasonable level of detail, with respect to ~~the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing~~status, ~~Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the~~ proposed Closing Date ~~(i)~~ and material terms of the ~~Debt Commitment Letter is terminated~~ material definitive documentation for ~~any reason, (ii) Parent becomes aware of any breach or default (A) by any~~ the Financing ~~Source party to the Debt Commitment Letter or any Debt Financing Agreement or~~ and (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete providing copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.current

Appears in 1 contract

Sources: Merger Agreement (Novell Inc)

Financing. (a) ~~Subject~~ Notwithstanding anything in this Agreement to the ~~terms and conditions of this Agreement~~contrary, Parent and Merger Sub acknowledge and agree that Parent’s and Merger Sub’s obligations to consummate the Merger are not conditioned upon Parent’s or Merger Sub’s obtaining any financing. For the avoidance of doubt, Parent and Merger Sub acknowledge and agree that the existence of any conditions contained in the Financing Commitments or any commitment letter for any alternative financing or any agreement relating thereto shall not constitute, nor be construed to constitute, a condition to the consummation of the Merger hereunder. (b) Each of the Parent and Merger Sub shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, or replace, the Financing Commitments if such amendment, modification, waiver or replacement (x) reduces the aggregate amount of the Financing (including by increasing the amount of fees to be paid to the Financing Sources or original issue discount), unless the Debt Financing or the Equity Financing is increased by a corresponding amount or (y) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of the Financing in a manner that would reasonably be expected to (I) materially delay or prevent the Closing Date, (II) materially delay, prevent or otherwise make materially less likely to occur the funding of the Financing (or satisfaction of the conditions to obtaining the Financing) or (III) adversely impact the ability of Parent or Merger Sub, as applicable, to enforce its rights against other parties to the Financing Letters or the definitive agreements with respect thereto in any material respect, and shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable ~~or proper~~ to arrange and obtain the ~~Debt~~ Financing on the terms and conditions (including the flex provisions) described in the ~~Debt Commitment Letter pursuant to~~ Financing Commitments (provided that the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent ~~shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement~~ and Merger Sub may amend or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from replace the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add ~~or replace~~ lenders, lead arrangers, bookrunners, syndication agents or similar entities ~~so long~~ who had not executed the Debt Financing Commitment as ~~such action would not reasonably be expected to delay or prevent~~ of the ~~Closing~~date hereof)~~. Parent shall promptly deliver to the Company true~~, ~~complete and correct copies of any such amendment, modification or replacement. (b) Parent shall, and shall cause its Affiliates and Representatives to, use~~ including using its reasonable best efforts to (Ai) to maintain in effect the ~~Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)~~Financing Commitments, (Bii) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (~~or obtain~~ taking into account the ~~waiver of), and in a manner that will not impede the ability~~ expected timing of the ~~parties to consummate the Merger,~~ Marketing Period) all conditions applicable to ~~receipt of~~ the ~~full amount of~~ Parent and Merger Sub to obtaining the Debt Financing at the Closing set forth therein that are within its ~~control or subject to its influence and~~control, ~~upon satisfaction of~~ (iii) enter into definitive agreements with respect thereto on the terms and conditions ~~set forth in~~ (including the ~~Debt Commitment Letter, to consummate~~ flex provisions) contemplated by the Debt Financing Commitment (and provide copies thereof to the Company), (iv) consummate the Financing in accordance with the terms and conditions of the Debt Financing Commitment at or prior to the Closing, (Dv) cause the Financing Sources providing Debt Financing to ~~comply with its obligations under~~ fund on the Closing Date the Debt ~~Commitment Letter, and (E)~~ Financing required to consummate the Merger and the other transactions contemplated hereby in accordance with the terms and conditions of the Debt Financing ~~at or prior to the Effective Time~~Commitment. In the event ~~that all~~ any portion of the Debt Financing becomes unavailable on the terms and conditions ~~precedent expressly~~ contemplated in the Debt Financing Commitment, the Parent shall promptly notify the Company and shall use its reasonable best efforts to arrange to obtain alternative debt financing from alternative debt sources on terms and conditions no less favorable to the Parent and Merger Sub (in the reasonable judgment of the Parent) and in an amount sufficient to consummate the transactions contemplated hereby promptly following the occurrence of such event. For the avoidance of doubt, in no event shall any Guarantor be required to provide any financing other than equity financing, which equity shall in no event be required to exceed the respective amounts set forth in the ~~Debt Commitment Letter~~ Equity Financing Commitment, and in no event shall the Parent or Merger Sub be required to seek or obtain equity financing other than the Equity Financing. The Parent shall promptly deliver to the Company true and complete copies of all agreements pursuant to which any such alternative source shall have ~~been or, upon funding~~ committed to provide the Parent and Merger Sub with any portion of the Financing. For purposes of this Section 5.10 and Section 4.4, references to “Financing” and “Debt Financing” shall include the financing contemplated by the Financing Commitments as permitted by this Section 5.10 to be amended, modified or replaced and references to “Financing Commitments” and “Debt Financing ~~will be~~Commitment” shall include such documents as permitted by this Section 5.10 to be amended, ~~satisfied~~modified or replaced, in each case from and after such amendment, modification or replacement. (c) Prior to the Closing, the Company and its Subsidiaries shall provide to the Parent and ~~Sub~~ Merger Sub, and shall use their reasonable best efforts to ~~enforce their rights under, and~~ cause the ~~Financing Sources~~officers, ~~lenders~~ employees, advisors and ~~the~~ other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations Representatives of the Company and its Subsidiaries ~~pursuant~~ to ~~Section 6.14 shall no longer~~ provide to the Parent and Merger Sub, all cooperation that is reasonably requested by the Parent in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries), including: (i) participating in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective Financing Sources, investors and ratings agencies, and reasonably cooperating with the marketing efforts of the Parent and Merger Sub and their Financing Sources, in each case in connection with the Financing; (ii) furnishing the Parent, Merger Sub and their Financing Sources as promptly as practicable with financial and other pertinent information regarding the Company and its Subsidiaries as may be reasonably requested by the Parent, including all financial statements and financial and other data of the type customarily included in ~~effect. Further~~a bank information memorandum (including pro forma financial information), ~~Parent shall have~~ and other documents reasonably requested by the ~~right~~ Financing Sources to ~~substitute commitments~~ consummate the Financings at the time the Financings are to be consummated, including all information and data necessary to satisfy the conditions set forth in ~~respect~~ paragraphs 5 and 6 of ~~other financings for all or any portion~~ Exhibit C of the Debt Financing ~~from~~ Commitment; provided that the ~~same and/or alternative financing sources so long as~~ Company shall only be required to furnish pro forma information relating to the ~~aggregate amount of~~ Merger incorporating proposed debt and equity capitalization if Parent has provided the ~~Debt Financing, together~~ Company with ~~other cash and cash equivalents available~~ the assumptions for such pro forma preparation at least ten days prior to ~~Parent,~~ the date such pro forma information is ~~sufficient to pay all amounts~~ required to be ~~paid in connection with the transactions contemplated by this Agreement~~ delivered (information and ~~all conditions precedent~~ data required to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified delivered pursuant to this clause (ii) ~~below, (ii) any reference in this Agreement~~ being referred to as the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iiiRequired Information”). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.;

Appears in 1 contract

Sources: Merger Agreement (SMART Global Holdings, Inc.)

Financing. (a) ~~Subject to the terms and conditions of this Agreement, Parent~~ Purchaser shall use its reasonable best efforts (taking into account the expected timing of the Marketing Period) to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable ~~or proper~~ to ~~arrange~~ obtain and ~~obtain~~ to consummate the Equity Financing and the Debt Financing on the terms and conditions described in the ~~Debt~~ Commitment ~~Letter pursuant to the terms thereof~~ Letters; provided, that Purchaser may (~~including any “market flex” provisions~~i) ~~including using its reasonable best efforts to seek to enforce its rights under~~ amend the Debt Commitment ~~Letter~~ Letters to add lenders, lead arrangers, book-runners, syndication agents or similar entities who had not executed the Debt Commitment Letters as of the date of this Agreement or (ii) otherwise replace or amend the Debt Commitment Letters, in ~~the event of a breach thereof~~ each case so long as such action would not be prohibited by the ~~financing provider(s) thereunder~~following sentence. ~~Parent~~ Purchaser shall ~~not, without the Company’s prior written consent,~~ not permit any ~~amendment, supplement, replacement~~ amendment or modification to be made to, or any waiver of any provision under, the ~~Debt~~ Commitment ~~Letter~~ Letters without the prior written consent of Sellers if such amendment, supplement, ~~replacement,~~ modification or ~~waiver~~ waiver: (Ai) reduces the aggregate amount of the ~~cash proceeds from~~ Financing (including by increasing the amount of fees to be paid or original issue discount as compared to such fees and original issue discount contemplated by the Debt Commitment Letter and related fee letters in effect on the date hereof unless the Debt Financing or the Equity Financing is increased by such amount); (Bii) (A) imposes new or additional conditions precedent to the ~~initial funding~~ Financing, or (B) otherwise ~~expands~~ adversely expands, amends or modifies any of the conditions precedent to the ~~receipt of the Debt~~ Financing, or otherwise expands, amends or modifies any other provision of the ~~Debt~~ Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement. (b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement ifLetters, in the case of this clause (B), ~~such breach or default~~ in a manner that would reasonably be expected to ~~affect~~ prevent or materially delay the ~~availability~~ ability of Purchaser to consummate the Closing; or (iii) would materially adversely impact the ability of Purchaser to enforce its rights against other parties to the Commitment Letters or otherwise to timely consummate the transactions contemplated by this Agreement. Purchaser shall promptly deliver to Sellers copies of any such amendment, modification, waiver or replacement. For purposes of this Agreement, references to “Financing” or “Debt Financing,” as applicable, shall include the financing contemplated by the Commitment Letters as permitted to be amended, modified, waived or replaced by this Section 5.14(a) or by Section 5.14(c) and references to “Debt Commitment Letters” shall include such documents as permitted to be amended, modified, waived or replaced by this Section 5.14(a) or Section 5.14(c). (b) Purchaser shall use its reasonable best efforts to (i) maintain in effect the Commitment Letters; (ii) negotiate and enter into 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 on the terms and conditions contained therein (including, as necessary to obtain the Financing, the “flex” provisions contained in any related fee letter), or on other terms no less favorable in any material respect to Purchaser as to conditionality than the terms and conditions in the Commitment Letters; provided, that in no event shall any such definitive agreement contain terms (other than those included in the Debt Commitment Letter) that would reasonably be expected to prevent or materially delay the Closing; (iii) provide Parent with copies of all substantially final drafts of such definitive agreements; (iv) satisfy on a timely basis all conditions applicable to Purchaser contained in the Debt Commitment Letters that are within its control (or, if deemed advisable by Purchaser, seek the waiver of conditions applicable to Purchaser contained in the Debt Commitment Letters), including the payment of any commitment, engagement or placement fees required as a condition to the Debt Financing and due and payable by Purchaser, as set forth in the Debt Commitment Letters, (v) enforce its rights under the Debt Commitment Letters, (vi) upon satisfaction of all of the conditions precedent under Sections 8.1 and 8.2 (except those that, by their nature, are to be satisfied at Closing, provided such conditions would be so satisfied as of such date), cause the funding of the Debt Financing at or prior to Closing (together with other sources of funds, with respect to the Required Amount); (vii) give Sellers prompt notice of any material breach by any party to the Debt Commitment Letters of which Purchaser has become aware or any termination of, or any notice of intention by any funding source not to provide the Financing contemplated in, any of the Commitment Letters; (viii) upon request of the Parent, Purchaser shall apprise Parent of material developments relating to the Financing. Notwithstanding anything to the contrary in this Agreement, nothing contained in this Section 5.14 shall require, and in no event shall the reasonable best efforts of Purchaser be deemed or construed to require, Purchaser or any Affiliate thereof to (i) seek the Equity Financing from any source other than those counterparty to, or in any amount in excess of that contemplated by, the Equity Commitment Letters, or (ii) pay any material fees in excess of those contemplated by the Equity Commitment Letters or the Debt Commitment Letters. (c) If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letters or the Debt Commitment Letters shall be terminated for any reason, Purchaser shall promptly notify Sellers in writing and shall use its reasonable best efforts to arrange to obtain alternative financing from alternative sources on terms and conditions (including all terms, termination rights, flex provisions and funding conditions) no less favorable to Purchaser as those contained in the Debt Commitment Letters and in an amount sufficient, together with the Equity Financing, available cash on hand of Purchaser and cash on hand of the Transferred Companies and their Subsidiaries available for application to the Required Amount, if any, on the Closing Date, to fund the Required Amount (the “Alternate Financing”) and, if obtained, will provide Parent with a copy of a new financing commitment that provides such Alternate Financing (an “Alternate Debt Commitment Letter”). To the extent applicable, Purchaser shall use its reasonable best efforts (taking into account the expected timing of the Marketing Period) to take, or cause to be taken, all actions and things necessary, proper or advisable to arrange promptly and consummate the Alternate Financing on the terms and conditions described in any Alternate Debt Commitment Letter, including by using reasonable best efforts to comply with its obligations under Section 5.14(b) above as though the references therein to Debt Commitment Letters and Debt Financing were instead references to the Alternate Debt Commitment Letter and the Alternate Financing, respectively. Notwithstanding anything to the contrary in this Agreement, Purchaser may enter discussions regarding, and may enter into arrangements and agreements relating to the Financing to add other equity providers, so long as in respect of any such arrangements and agreements, the following conditions are met: (i) the aggregate amount of the Equity Financing is not reduced; (ii) the arrangements and agreements, in the aggregate, would not be reasonably likely to delay or prevent the Closing; and (iii) ~~a counterparty indicates in writing~~ the arrangements and agreements would not diminish or ~~orally that it will not provide~~release the pre-closing obligations of the parties to the Equity Commitment Letters, adversely affect the rights of Purchaser to enforce its rights against the parties to the Equity Commitment Letters, or ~~it refuses to provide~~otherwise constitute a waiver or reduction of Purchaser’s rights under the Equity Commitment Letters. For the avoidance of doubt, in the event that (i) all or any portion of the Debt Financing contemplated to be raised in lieu of the bridge financing contemplated under the Debt Commitment Letters has not been consummated, (ii) the conditions set forth in Article VIII have been satisfied or waived, and (iii) all of the conditions set forth in the Debt Commitment Letters have been satisfied or waived (other than those conditions which by their nature are to be satisfied at Closing, but subject to the satisfaction of those conditions), Purchaser shall use reasonable best efforts to cause the proceeds of the bridge facility contemplated by the Debt Commitment ~~Letter on~~ Letters to be used to cause the Closing to occur in accordance with the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financingand conditions hereunder. (d) ~~Parent~~ Prior to the Closing, or as expressly provided in clause (iv) below, Sellers shall use commercially reasonable efforts to, and to cause the members of the Education Group and the Sellers’ and the members of the Education Group’s respective directors, officers, employees, agents, consultants, advisors, (including legal, financial and accounting advisors), and other representatives (collectively, “Representatives”) to, provide to Purchaser such cooperation as is reasonably requested by Purchaser and the Debt Financing Sources in connection with the Debt Financing (provided that such requested cooperation does not materially and adversely interfere with the ongoing operations of Sellers and its Subsidiaries), including: (i) assisting in preparation for and participation in marketing efforts (including lender meetings and calls), other meetings, drafting sessions, rating agency presentations, road shows and due diligence sessions (including accounting due diligence sessions) and sessions with prospective lenders, investors and ratings agencies and assisting Purchaser in obtaining ratings as contemplated by the Debt Financing; (ii) assisting Purchaser and the Debt Financing Sources in the preparation of (A) offering documents, private placement memorandum, bank information memorandum, prospectuses and similar marketing documents for any of the Financing, including the execution and delivery of customary representation letters in connection with bank information memoranda and reviewing and commenting on Purchaser’s draft of a business description and “Management’s Discussion and Analysis” of the Education Group’s financial statements to be included in offering documents contemplated by the Debt Financing; and (B) materials for rating agency presentations; (iii) as promptly as reasonably practicable (A) furnishing Purchaser and Purchaser’s financing sources (including the Debt Financing Sources) and their respective Representatives with the Required Information and (B) informing Purchaser if Sellers or their Subsidiaries shall have knowledge of any facts that would likely require the ~~right~~ restatement of such financial statements for such financial statements to ~~substitute~~ comply with GAAP; (iv) both before the ~~net cash proceeds received by Parent~~ Closing and, to the extent reasonably necessary to allow Purchaser or any of its Affiliates to consummate a securities offering or comply with SEC requirements, after the ~~date hereof~~ Closing, providing appropriate representations in connection with the preparation of financial statements and ~~prior~~ other financial data of the Education Group and requesting accountants’ consents in connection with the use of the Education Group’s financial statements in offering documents, prospectuses, Current Reports on Form 8-K and other documents to be filed with the SEC; (v) using reasonable best efforts to assist Purchaser in connection with the preparation of pro forma financial information and financial statements to the extent required by SEC rules and regulations or necessary or reasonably required by Purchaser’s financing sources (including the Debt Financing Sources) to be included in any offering documents; provided that neither Sellers nor any of their Subsidiaries or Representatives shall be responsible in any manner for information relating to the proposed debt and equity capitalization that is required for such pro forma financial information; (vi) using reasonable best efforts to provide (x) monthly financial reports consistent with Sellers’ past practice, (y) within forty-five (45) days of the end of each of the first three fiscal quarters of the fiscal year, quarterly financial statements which have been “reviewed” by auditors in accordance with Statements on Auditing Standards 100, and (z) within ninety (90) days of the end of each fiscal year, audited financial statements for such fiscal year; (vii) executing and delivering as of (but not before) the Closing ~~from consummated offerings~~ any pledge and security documents, other definitive financing documents, or other ~~incurrences of debt~~ certificates, customary (e.g., local counsel) legal opinions or documents as may be reasonably requested by Purchaser (including ~~notes~~a certificate of the chief financial officer of the Education Group with respect to solvency matters in the form set forth as an annex to the Debt Commitment Letters) and otherwise facilitating the pledging of collateral (including (x) cooperation in connection with the pay-off of existing Indebtedness to the extent contemplated by ~~Parent~~ this Agreement and the release of related Liens and termination of security interest and (y) cooperation in connection with Purchaser’s efforts to obtain environmental assessments and title insurance); (viii) assisting Purchaser to obtain waivers, consents, estoppels and approvals from other parties to material leases, encumbrances and Contracts relating to the Education Group and to arrange discussions among Purchaser, the providers of the Equity Financing and the Debt Financing and their respective Representatives with other parties to material leases, encumbrances and Contracts as of the Closing; (ix) taking all reasonable actions necessary to (A) permit Purchaser’s financing sources (including the Debt Financing Sources) to evaluate the Education Group’s current assets, cash management and accounting systems, policies and procedures relating thereto for the purposes of establishing collateral arrangements as of the Closing and to assist with other collateral audits and due diligence examinations and (B) establish bank and other accounts and blocked account agreements and lock box arrangements to the extent necessary in connection with the Debt Financing; (x) taking all corporate actions, subject to the occurrence of the Closing, reasonably requested by Purchaser that are necessary or ~~any portion~~ customary to permit the consummation of the Debt ~~Financing by reducing commitments under~~ Financing, including any high yield financing, and to permit the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reductionproceeds thereof, together with the cash at the Education Group, if any (not needed for other ~~cash and cash equivalents available to Parent~~purposes), ~~is sufficient to pay all amounts required~~ to be ~~paid in connection with~~ made available on the Closing Date to consummate the transactions contemplated by this Agreement, ; (xxi) ~~the proceeds of such debt offerings or other incurrences have been received by Parent in cash,~~ providing at least five (y5) ~~Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification~~ Business Days prior to the ~~Debt Commitment Letter relating thereto will be promptly provided~~ Closing Date all documentation and other information about the Education Group as is required by applicable “know your customer” and anti-money laundering rules and regulations including the USA PATRIOT Act to the ~~Company. If commitments under~~ extent requested at least eight (8) Business Days prior to the anticipated Closing Date; and (xii) using reasonable best efforts to assist Purchaser in the implementation of the corporate restructuring of the Education Group in accordance with the Debt ~~Commitment Letter have been reduced~~ Financing (for the avoidance of doubt, such restructuring to ~~zero~~ be effective only upon the Closing); provided that, anything to the contrary in ~~connection with~~ this Agreement notwithstanding, Purchaser shall indemnify, defend and hold harmless, to the ~~preceding sentence~~fullest extent permitted by law, the ~~obligations~~ Sellers Indemnified Parties from and against any and all Losses or Taxes incurred or suffered by any of Sellers Indemnified Parties to the ~~Company and its Subsidiaries pursuant~~ extent based upon, arising by reason of or resulting from any actions or omissions to ~~Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments~~ act in respect of ~~other financings for all~~ such corporate restructuring, in each case to the extent such Losses or ~~any portion~~ Taxes would not have been incurred or suffered by the Seller Indemnified Parties as a result of the ~~Debt Financing from the same and/or alternative financing sources so long as the aggregate amount~~ consummation of the ~~Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with~~ Plan of Reorganization or otherwise by the transactions contemplated by this Agreement ~~and all conditions precedent~~ (other than this clause (xii)). provided that neither Sellers nor any of their Affiliates shall be required to ~~funding of such financing are~~pay any commitment or other similar fee or incur any other Liability, in ~~respect of certainty of funding~~each case, ~~equivalent to (or more favorable to~~ in connection with the ~~Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt~~ Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the ~~fee letter~~Education Group, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided prior to the ~~Company. In~~ Closing); provided, further, that the ~~event~~ effectiveness of any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.document

Appears in 1 contract

Sources: Purchase and Sale Agreement (McGraw-Hill Global Education LLC)

Financing. (aA) ~~Subject~~ Parent has delivered to the Company a true, accurate and complete copy of an executed equity commitment letter, dated as of March 20, 2022, as amended by that certain Amendment to Equity Commitment Letter, dated as of the Amendment Date, by and among Parent and Sponsor, including all exhibits, schedules, annexes and amendments thereto (the “Equity Commitment Letter”), pursuant to which, and subject to the terms and conditions of ~~this Agreement~~which, Sponsor has committed to provide the amounts set forth therein to Parent ~~shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain~~ for the ~~Debt Financing on~~ purpose of funding the ~~terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof~~ Required Amount (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision undersuch committed equity financing, the ~~Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or~~ “Equity Financing”). (B) ~~imposes new or additional conditions to the initial funding or otherwise expands any~~ (i) As of the ~~conditions to~~ Amendment Date, the ~~receipt of the Debt Financing~~Equity Commitment Letter is in full force and effect and has not been withdrawn, rescinded or terminated, or otherwise ~~expands~~amended or modified in any respect and (ii) the Equity Commitment Letter, ~~amends~~ in the form so delivered, constitutes a legal, valid and binding obligation of Parent or ~~modifies any other provision of~~ Merger Sub, as applicable, and Sponsor, enforceable against the ~~Debt~~ parties thereto in accordance with its terms except as enforceability may be affected by applicable Enforceability Limitations. The Equity Commitment Letter is the only agreement relating to the Equity Financing as of Amendment Date. Other than as expressly set forth in ~~a manner~~ the Equity Commitment Letter, there are no other agreements, side letters, or arrangements, conditions precedent or other contingencies relating to the Equity Commitment Letter that would reasonably be expected to ~~(x) delay~~ impair the amount, availability or ~~prevent the funding in full~~ conditionality of the ~~Debt Financing~~ Equity Financing. The Equity Commitment Letter provides that the Company is an express third-party beneficiary of the Equity Commitment Letter in connection with Company’s exercise of its rights under Section 9.6 of the Merger Agreement. (C) As of Amendment Date, no event has occurred which, with or ~~satisfaction~~ without notice, lapse of time or both, would constitute a default or breach on the part of Parent or Merger Sub, as applicable, under any term of the Equity Commitment Letter or, would (i) make any of the assumptions or any of the statements set forth in the Equity Commitment Letter inaccurate in any material respect, (ii) result in any of the conditions to in the ~~Debt Financing~~Equity Commitment Letter not being satisfied or (iii) otherwise result in the Equity Financing not being available on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement. (b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon Assuming satisfaction of the conditions set forth in Sections 7.1 and 7.2 of the ~~Debt~~ Merger Agreement, as of the Amendment Date, each of Parent and Merger Sub has no reason to believe that any of the conditions in the Equity Commitment ~~Letter,~~ Letter will fail to ~~consummate~~ be satisfied on a timely basis or that the ~~Debt~~ full amount of the Equity Financing will not be available to be funded at ~~or prior to~~ the ~~Closing,~~ Effective Time. (D) ~~to comply with its obligations under~~ The aggregate proceeds from the ~~Debt Commitment Letter~~Equity Financing constitute all of the financing required for the consummation of the Merger and the other Transactions, and are sufficient in amount for Parent or Merger Sub, as applicable, to pay the Merger Consideration payable for all Company Shares in connection with the Transaction, any other amounts required to be paid at Closing in connection with the consummation of the Transactions (Eincluding any and all payments with respect to Company Stock Options or Company RSUs payable under this Agreement at Closing) ~~to consummate~~ and, together with the ~~Debt Financing at or prior~~ Company’s cash on hand as of the Closing Date, all associated fees, costs and expenses in connection with the Merger and the other Transactions, including the Equity Financing, in each case, to the ~~Effective Time~~extent required to be paid on the Closing Date (collectively, the “Required Amount”). ~~In the event that all~~ The only conditions precedent related to the obligations of Sponsor to fund the full amount of the Equity Financing are expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Equity Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.

Appears in 1 contract

Sources: Agreement and Plan of Merger (Anaplan, Inc.)

Financing. (a) Subject to the terms and conditions of this Agreement, each of Parent and Merger Sub shall use its reasonable best efforts to ~~take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and~~ obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent Letter, and shall ~~not, without the Company’s prior written consent,~~ not permit any ~~amendment, supplement, replacement~~ amendment or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, ~~supplement, replacement,~~ modification or waiver (Ai) reduces (or could have the effect of reducing) the aggregate amount of the ~~cash proceeds from~~ Debt Financing (including by increasing the amount of fees to be paid or original issue discount unless (x) the Debt Financing is increased by a corresponding amount or additional Debt Financing is otherwise made available to fund such fees or original issue discount any (y) after giving effect to any of the transactions referred to in clause (x) above, the representation and warranty set forth in Section 6.2(i) shall be true and correct as of the time of such transaction), or (Bii) imposes new or additional conditions ~~to the initial funding~~ or otherwise ~~expands~~ expands, amends or modifies any of the conditions to ~~the receipt of~~ the Debt Financing, or otherwise expands, amends or modifies any other ~~provision~~ provisions of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent or make less likely the funding ~~in full~~ of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing ~~Date,~~ Date or (y) adversely ~~affect~~ impact the ability of ~~Parent~~ Parent, Merger Sub or the Company, as applicable, to enforce its rights against other parties to the Debt Commitment ~~Letter or the definitive agreements with respect thereto~~ Letter, in each of clauses (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing)x) and (y) in any material respect. Parent shall promptly deliver to the Company ~~true, complete and correct~~ copies of any such amendment, modification or replacement. (b) Each of Parent ~~shall,~~ and Merger Sub shall ~~cause its Affiliates and Representatives to,~~ use its reasonable best efforts (Ai) to maintain in effect the Debt Commitment ~~Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)~~Letter, (Bii) to negotiate and enter into definitive agreements with respect to the Debt ~~Commitment Letter (the “Debt~~ Financing ~~Agreements”)~~ on the terms and conditions ~~that are not materially~~ (including the flex provisions) contained in the Debt Commitment Letter (or on terms no less favorable to Parent or Merger Sub than ~~those~~ the terms and conditions (including flex provisions) in the Debt Commitment Letter), the terms and conditions of which shall not expand the conditions to the closing of the Debt Financing contained in the Debt Commitment Letter, (Ciii) to ~~satisfy~~ satisfy, or cause its Representatives to satisfy, on a timely basis ~~(or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger,~~ all conditions to ~~receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth~~ funding in the Debt Commitment ~~Letter,~~ Letter and such definitive agreements thereto and to consummate the Debt Financing at or prior to the Closing, including using its reasonable best efforts (Dincluding through litigation pursued in good faith) to cause the Lenders to fund the Debt Financing at the Closing, (iv) to enforce its rights (including through litigation pursued in good faith) under the Debt Commitment Letter and (v) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt ~~Financing, and, promptly following request by the Company,~~ Financing and provide to the Company copies of ~~all executed~~ the material definitive agreements for the Debt ~~Financing Agreements. (c)~~ Financing. Without limiting the generality of the foregoing, Parent ~~agrees to notify~~ shall give the Company ~~promptly, and in~~ prompt notice of (1) any ~~event within two (2) Business Days, if at~~ breach or default by any ~~time prior to the Closing Date (i)~~ party under the Debt Commitment Letter ~~is terminated for any reason~~or definitive agreements related to the Debt Financing of which Parent or Merger Sub becomes aware, (ii2) ~~Parent becomes aware of~~ any ~~breach~~ notices or ~~default~~ communications from the Lender with respect to any (A) actual or potential breach, default, termination or repudiation by any ~~Financing Source~~ party to the Debt Commitment Letter or ~~any~~ definitive agreements related to the Debt Financing ~~Agreement~~ of any provisions thereof or (B) material dispute or disagreement between or among any ~~other party~~ parties to ~~the~~ Debt Commitment Letter or ~~any~~ definitive agreements related to the Debt Financing ~~Agreement if, in~~ with respect to the ~~case of this clause (B), such breach~~ obligation to fund the Debt Financing or ~~default would reasonably be expected to affect~~ the ~~availability~~ amount of the Debt Financing to be funded at Closing or (~~iii~~3) ~~a counterparty indicates~~ if at any time for any reason Parent or Merger Sub believes in ~~writing or orally~~ good faith that it will not ~~provide, or it refuses~~ be able to ~~provide,~~ obtain all or any portion of the Debt Financing on the terms and conditions, in the manner or from the sources contemplated by any of the Debt Commitment Letter ~~on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating~~ or definitive agreements related to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing~~. (d) Parent shall have~~ . In the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or event that any portion of the Debt Financing ~~by reducing commitments under~~ becomes unavailable in the ~~Debt Commitment Letter; provided that (v) such offering~~ manner or ~~other incurrence of debt does not result~~ from the sources contemplated in ~~a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under~~ the Debt Commitment Letter ~~following such reduction, together with other cash and cash equivalents available~~ despite Parent’s reasonable best efforts to ~~Parent, is sufficient to pay all amounts required to be paid in connection with~~ obtain the ~~transactions contemplated by this Agreement~~Debt Financing, (~~x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y~~i) Parent shall promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of notify the Company and ~~its Subsidiaries pursuant~~ (ii) Parent and Merger Sub shall use their respective reasonable best efforts to ~~Section 6.14 shall no longer be in effect. Further, Parent shall have the right~~ arrange to ~~substitute commitments in respect of other financings for all or~~ obtain any such portion of the Debt Financing from ~~the same and/or~~ alternative ~~financing sources so long as the aggregate amount of the Debt Financing~~sources, ~~together with other cash~~ on terms and ~~cash equivalents available~~ conditions that are not materially less favorable to Parent, is as promptly as practicable following the occurrence of such event (and in any event no later than ten business days prior to the Termination Date), in an amount sufficient to ~~pay all amounts required to be paid in connection with~~ consummate the Merger and the other transactions contemplated by this Agreement ~~and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to~~ (~~or more favorable to~~ the ~~Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (~~“~~Alternative Debt~~ Alternate Financing”)~~. True~~, ~~correct and complete copies of each alternative financing commitment in~~ including entering into definitive agreements with respect ~~of such Alternative Debt Financing~~ thereto (~~each, a~~ the “New ~~Debt Commitment Letter~~Financing Documents”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New ~~Debt Commitment Letter~~ Financing Document is ~~obtained~~entered into, (iA) any reference in this Agreement to the “Debt Financing” shall ~~include~~ meant the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (iiB) below, (iiB) any reference in this Agreement to ~~the~~ “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter ~~which~~ that is not superseded by a New ~~Debt Commitment Letter~~ Financing Document at the time in question and ~~each~~ the New ~~Debt Commitment Letter~~ Financing Document to the extent then in ~~effect,~~ effect and (~~iii~~C) any reference in this Agreement to a “~~fee letter~~Redacted Fee Letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by ~~any~~ a New ~~Debt Commitment Letter~~ Financing Document at the time in question and ~~each~~ the New ~~Debt Commitment Letter~~ Financing Document to the extent then in effect. Parent shall deliver to the Company true and complete copies of all Contracts or other arrangements (including Redacted Fee Letters) pursuant to which any such alternative source shall have committed to provide any portion of the Debt Financing. Parent and Merger Sub acknowledge and agree that the obtaining of the Debt Financing, or any Alternate Financing, is not a condition to Closing. (ec) On Prior to the Closing Date, ~~Parent shall provide all funds required to effect the repayment of all indebtedness under~~ the Company ~~Credit Agreement~~ shall use its reasonable best efforts to, and shall cause each of its Subsidiaries to use its reasonable best efforts to, cooperate, in ~~full~~ each case at Parent’s sole expense, in ~~accordance~~ connection with the arrangement of the Debt Financing as may be reasonably requested by the Lender or any alternative sources arranged by Parent in compliance with Section 7.9(b) (provided, however, that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company ~~Credit Agreement~~and its Subsidiaries). Such cooperation by the Company and its Subsidiaries shall include, at the request of the Lender or any alternative sources arranged by Parent in compliance with Section 7.9(b), (i) delivering such officer’s and other certificates (and related documents thereto) as reasonably required by the Lender or any alternative sources arranged by Parent in compliance with Section 7.9(a) and as are, in the good faith determination of the persons executing such certificates, accurate, (ii) entering into such agreements and arrangements as reasonably required the Lender or any alternative sources arranged by Parent in compliance with Section 7.9(b) and on terms reasonably satisfactory to Parent, including agreements to pledge, guarantee, grant security interests in, and otherwise grant liens on, the Company’s or its Wholly Owned Subsidiaries’ assets; provided, however, that no obligation of the Company or its Wholly Owned Subsidiaries under any such agreement, pledge, guarantee or grant contemplated by this clause (ii) shall be effective until the Effective Time, (iii) using its reasonable efforts to cause its independent registered public accountants to deliver such comfort letters as reasonably required by the Lender or any alternative sources arranged by Parent in compliance with Section 7.9(b), (iv) providing Parent and its Debt Financing sources as promptly as practicable with financial and other pertinent information with respect to the Company and its Subsidiaries as reasonably required by Parent, the Lender, or any alternative sources arranged by Parent in compliance with Section 7.9(b), (v) making the Company’s executive officers and other relevant employees reasonably available to assist the Lender providing the Debt Financing, and (vi) taking all corporate actions, subject to ~~compliance with Section 6.14(a)(iii)~~the occurrence of the Closing, reasonably requested by Parent to permit consummation of the Debt Financing and the direct borrowing or incurrence of all proceeds of the Debt Financing by the Surviving Corporation immediately following the Effective Time. (fd) ~~Notwithstanding anything to~~ Parent shall promptly, upon the ~~contrary contained herein~~termination of this Agreement, ~~Parent’s obligations hereunder are not subject to a condition regarding Parent’s~~ reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company or any of its ~~Affiliates’ obtaining funds~~ Subsidiaries in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 7.9 and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all liabilities or losses suffered or incurred by any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith (except with respect to ~~consummate~~ any information provided by or on behalf of the Company or any of its Subsidiaries), except in the event such liabilities or losses arose out of or result from the willful misconduct of the Company, its Subsidiaries or any of their respective Representatives. Parent and Merger Sub acknowledge and agree that the Company and its Subsidiaries and their respective Representatives shall not, prior to the Effective Time, incur any liability to any person under any financing that Parent and Merger Sub may raise in connection with the transactions contemplated by this Agreement.

Appears in 1 contract

Sources: Merger Agreement (China GrenTech CORP LTD)

Financing. (a) Subject to the terms and conditions of this Agreement, Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things ~~necessary, advisable or proper~~ necessary to arrange and obtain the Debt Financing on the terms and subject to the conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent and shall ~~not, without the Company’s prior written consent,~~ not permit any ~~amendment, supplement, replacement~~ amendment or modification to be made to, or any waiver of any provision ~~under~~or remedy under the Debt Commitment Letter; provided, that Parent and Merger Sub may amend or modify the Debt Commitment Letter ~~if such amendment, supplement, replacement, modification~~ and/or elect to replace all or ~~waiver (A) reduces the aggregate amount~~ any portion of ~~the cash proceeds from~~ the Debt Financing with alternative debt and/or equity financing (the “Alternative Financing”), in each case so long as (i) the aggregate proceeds of the Debt Financing (as amended or modified) and/or any Alternative Financing will be sufficient for Merger Sub and the Surviving Corporation to pay (B1) ~~imposes~~ the aggregate Merger Consideration and (2) any other amounts required to be paid in connection with the consummation of the Transactions upon the terms and subject to the conditions contemplated hereby and all related fees and expenses associated therewith, and (ii) the amendment or modification or the Alternative Financing does not impose new or additional conditions ~~to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing,~~ or otherwise expands, amends or modifies ~~any other provision of~~ the ~~Debt Commitment Letter~~ existing conditions, in ~~a manner that~~ each case would not or would not reasonably be expected to (x1) prevent or materially delay ~~or prevent~~ the ~~funding in full~~ consummation of the ~~Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date,~~ Transactions or (y2) materially adversely ~~affect~~ impact the ability of Parent or Merger Sub to enforce ~~its~~ their respective rights against the other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing)Letter. Parent shall promptly deliver to the Company ~~true, complete and correct~~ copies of any such amendment, modification or replacement~~. (b)~~ . In addition, Parent ~~shall,~~ and Merger Sub shall ~~cause its Affiliates and Representatives to,~~ use ~~its~~ their respective reasonable best efforts to (A) subject to its rights under the first sentence of this Section 7.07(a), maintain in full force and effect the Debt Commitment ~~Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)~~Letter, (B) to negotiate ~~and enter into~~ definitive agreements with respect to the Debt ~~Commitment Letter (the “Debt~~ Financing ~~Agreements”)~~ on the terms and subject to the conditions ~~that are not materially less favorable to Parent than those~~ contained in the Debt Commitment Letter, (C) to satisfy on a timely basis ~~(or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger,~~ all conditions ~~to receipt of the full amount of~~ in the Debt ~~Financing at the Closing set forth therein~~ Commitment Letter that are within its control ~~or subject to~~ and otherwise comply with its ~~influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing~~obligations thereunder, (D) ~~to comply with its obligations under the Debt Commitment Letter, and (E) to~~ consummate the Debt Financing at or prior to the Effective ~~Time~~Time and (E) enforce its rights under the Debt Commitment Letter. In For purposes of this Section 7.07, references to “Debt Financing” shall include the ~~event that all conditions precedent expressly set forth in~~ financing contemplated by the Debt Commitment Letter ~~have been or~~as permitted to be replaced, ~~upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under~~amended or supplemented by this Section 7.07(a), and ~~cause the Financing Sources, lenders and the other persons providing or committing~~ references to ~~provide the Debt Financing to comply with their obligations under the~~ “Debt Commitment ~~Letter and definitive financing agreements and~~ Letter” shall include such documents as permitted to ~~fund on~~ be replaced, amended or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request supplemented by ~~the Company, provide to the Company copies of all executed Debt Financing Agreements~~this Section 7.07(a). (cb) Without limiting the ~~foregoing~~generality of Section 7.07(a), Parent ~~agrees to notify~~ shall give the Company ~~promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date~~ prompt notice: (i) ~~the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware~~ of any breach or default (Aor any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any breach or default) by any party to the Debt Commitment Letter, which would be reasonably likely to result in any condition of the Debt Commitment Letter not to be satisfied to the effect that the Debt Financing ~~Source~~ shall cease to be available or the termination of the Debt Commitment Letter, of which Parent or Merger Sub becomes aware; (ii) of the receipt of any written notice or other written communication from any party to the Debt Commitment Letter with respect to any alleged or threatened breach, default, termination or repudiation by any ~~Debt Financing Agreement or (B) any other~~ party to the Debt Commitment Letter or which could result in any ~~Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability~~ condition of the Debt Commitment Letter not to be satisfied to the effect that the Debt Financing shall cease to be available or the termination of the Debt Commitment Letter; and (iii) ~~a counterparty indicates in writing~~ if Parent or ~~orally~~ Merger Sub at any time believes that it will not ~~provide, or it refuses~~ be able to ~~provide,~~ obtain all or any portion of the Debt Financing on the terms, in the manner or from the sources contemplated by the Debt Commitment ~~Letter on~~ Letter. In the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or event any portion of the Debt Financing ~~by reducing commitments under~~ becomes unavailable on the ~~Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result~~ terms and subject to the conditions contemplated in ~~a breach or default under, or violation of,~~ the Debt Commitment Letter, (w1) Parent shall promptly notify the Company, and (2) Parent shall use its reasonable best efforts to arrange to obtain the Alternative Financing in an amount sufficient to consummate the Transactions, including the Merger, as promptly as possible. (c) The Company agrees to use reasonable best efforts to provide, and shall cause each Company Subsidiary and each of their respective Representatives to use reasonable best efforts to provide, to Parent and Merger Sub all reasonable cooperation as may be requested by Parent or its Representatives that is customary in connection with the Debt Financing and any Alternative Financing, including, without limitation, (i) participating in a reasonable number of meetings, presentations, due diligence sessions, road shows, sessions with rating agencies and other meetings, including arranging for reasonable direct contact between the Representatives of the Company with the Representatives of Parent and Merger Sub and their Debt Financing and/or Alternative Financing sources, (ii) assisting in the preparation of offering memoranda, private placement memoranda, bank information memoranda (including a public side version which does not contain non-publicly available information), prospectuses, rating agency presentations and similar documents reasonably requested by Parent and Merger Sub or their Representatives in connection with the Debt Financing and/or Alternative Financing, (iii) causing the Company’s independent accountants to provide assistance and cooperation to Parent and its Representatives, including participating in drafting sessions and accounting due diligence sessions, assisting in the preparation of any pro forma financial statements, providing consent to Parent to use audit reports relating to the Company and the Company Subsidiaries and providing any necessary “comfort letters,” (iv) furnishing Parent and Merger Sub and their Debt Financing and/or Alternative Financing sources with financial and other pertinent information regarding the Company and the Company Subsidiaries as may be reasonably requested by Parent, Merger Sub and their Debt Financing and/or Alternative Financing sources, including, without limitation, all financial statements and financial and non-financial information regarding the Company and the Company Subsidiaries of the type and form customary for the placement, arrangement and/or syndication of loans or distribution of debt contemplated by (or otherwise required as a condition to funding under) the ~~aggregate amount~~ Debt Financing, (v) assisting in the negotiation of, and executing and delivery of, the definitive financing documents, including pledge and security documents, certificates, management representation letters or other documents, to the extent reasonably requested by Parent and otherwise reasonably facilitating the pledging of collateral, (vi) providing reasonable access by Parent and any Debt Financing or Alternative Financing sources, and their respective officers, employees, consultants and advisors (including legal, valuation, and accounting advisors) to the books and records, properties, officers, directors, agents and other Representatives of the Company and each of the Company Subsidiaries, (vii) taking all reasonable actions necessary to (1) permit the prospective lenders involved in the Debt Financing or Alternative Financing to evaluate the Company’s assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements and (2) establish bank and other accounts and blocked account Contracts and lock box arrangements in connection with the foregoing, and (viii) furnishing Parent, Merger Sub and their Representatives with documentation as may be reasonably required with respect to the Debt Financing and/or any Alternative Financing under applicable “know your customer” and anti-money laundering rules and regulations; provided, that (A) none of the Company or any Company Subsidiary shall be required to become subject to any obligations or liabilities with respect to any definitive Financing documents, including pledge and security documents prior to the Closing, and none of the Company or any Company Subsidiary shall be required to take any action that is not contingent upon the Closing or that would be effective prior to the Effective Time, (B) nothing herein shall require such cooperation to the extent it would interfere unreasonably with the business and operations of the Company or any Company Subsidiary and (C) none of the Company or any Company Subsidiary shall be required to issue any offering or information document prior to the Effective Time. None of the Company or any Company Subsidiary shall be required to take any action that would subject it to actual or potential liability that will not be indemnified by Parent hereunder, to bear any cost or expense or to pay any commitment or other similar fee or make any other payment (other than reasonable out-of-pocket costs) or incur any other liability or provide or agree to provide any indemnity in connection with the Financing or any of the foregoing prior to the Effective Time. Parent shall, promptly upon request by the Company, reimburse the Company for all out of pocket costs and expenses incurred by the Company or any Company Subsidiary in connection with its cooperation as contemplated by this Section 7.07 and shall indemnify and hold harmless the Company and the Company Subsidiaries from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with the arrangement of the Debt Financing ~~committed under the Debt Commitment Letter following such reduction, together with other cash~~ or any Alternative Financing and ~~cash equivalents available to Parent, is sufficient to pay all amounts required to be paid~~ any information utilized in connection therewith except with ~~the transactions contemplated~~ respect to any information provided by ~~this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies~~ the Company ~~of such substitution and reduction and (z) true, correct and complete copies of each material amendment~~ or ~~modification to~~ any Company Subsidiary or the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations willful misconduct of the Company ~~and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all~~ or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectSubsidiary. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.

Appears in 1 contract

Sources: Merger Agreement (Synutra International, Inc.)

Financing. (a) ~~Subject to the terms and conditions of this Agreement,~~ Parent shall use its commercially reasonable ~~best~~ efforts to take, or cause Merger Sub to ~~be taken~~take, all actions and to do, or cause Merger Sub to ~~be done~~do, all things reasonably necessary, proper or advisable ~~or proper~~ to ~~arrange~~ arrange, and ~~obtain~~ consummate in a timely manner, the ~~Debt~~ Financing on the terms and conditions described in the ~~Debt Commitment Letter pursuant~~ Financing Commitments (provided that, subject to the ~~terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event~~ provisions of ~~a breach thereof by the financing provider(s) thereunder.~~ this Section 6.14(a), Parent ~~shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement~~ and Merger Sub may replace or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from amend the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter Commitments to add ~~or replace~~ lenders, lead arrangers, bookrunners, syndication agents or similar entities which had not executed the Debt Financing Commitments as of the date hereof, or otherwise so long as such ~~action~~ replacement or amendment would not ~~reasonably be expected~~ adversely impact in any material respect the ability of Parent or Merger Sub to ~~delay or prevent~~ consummate the ~~Closing~~transactions contemplated hereby)~~. Parent shall promptly deliver~~ , including using commercially reasonable efforts to ~~the Company true, complete and correct copies of any such amendment, modification or replacement.~~ (bi) ~~Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to~~ maintain in effect the ~~Debt Commitment Letter (provided that~~ Financing Commitments, subject to the ~~Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)~~foregoing replacement and amendment rights, (Bii) satisfy on a timely basis all conditions applicable to ~~negotiate~~ Parent and Merger Sub to obtaining the Financing set forth in the Financing Commitments that are within their control, (iii) enter into definitive agreements with respect ~~to the Debt Commitment Letter (the “Debt Financing Agreements”)~~ thereto on the terms and conditions ~~that are not materially less favorable~~ contemplated by the Financing Commitments or on other terms acceptable to Parent ~~than those contained~~ that would not adversely impact in ~~the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede~~ any material respect the ability of ~~the parties~~ Parent or Merger Sub to consummate the ~~Merger~~transactions contemplated hereby, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to and (iv) consummate the ~~Debt~~ Financing at or prior to the ~~Closing~~Closing Date, but in no event later than the Outside Date (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their including using commercially reasonable ~~best~~ efforts to ~~enforce their rights under, and~~ cause the ~~Financing Sources,~~ lenders and other Persons providing the ~~other persons providing or committing~~ Financing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(cfinancing). Parent shall ~~not, nor~~ not and shall ~~it permit any of its Affiliates~~ cause Merger Sub not to, without the prior written consent of the Company, ~~take~~ amend, modify or supplement (including in the definitive documents) (x) any ~~action~~ of the conditions or ~~enter into~~ contingencies to funding contained in the Financing Commitments, or (y) any ~~transaction that would~~ other provision of the Financing Commitments, in either case to the extent such amendment, modification or supplement could reasonably be expected to have the effect of materially ~~impair, delay~~ adversely affecting the ability of Parent or ~~prevent consummation of all or~~ Merger Sub to timely consummate the transactions contemplated hereby. In the event that any portion of the Financing contemplated by the Financing Commitments becomes unavailable other than due to the breach of representations and warranties or covenants of the Company or a failure of a condition to be satisfied by the Company after providing notice to the Company and a reasonable opportunity to cure, Parent and Merger Sub shall notify Company and use their commercially reasonable efforts to arrange alternative financing from the same or other sources on terms not less beneficial to Parent and Merger Sub (as determined in the reasonable judgment of Parent), and in an amount sufficient to timely (taking into account the Outside Date) consummate the transactions contemplated hereby on the terms and conditions set forth herein. In the event all conditions applicable to the Financing Commitments (other than in connection with the Debt Financing, the availability or funding of the Equity Financing) have been satisfied, Parent and Merger Sub shall use their commercially reasonable efforts to cause the lenders and the other Persons providing such Financing to fund the Financing required to consummate the Merger on the Closing Date. Parent and Merger Sub shall use their commercially reasonable efforts to satisfy on or before the Closing all requirements of the definitive agreements pursuant to which the Financing will be obtained. Parent and Merger Sub shall give the Company prompt notice of any breach by any party to the Financing Commitments of which either Parent or Merger Sub becomes aware or any termination of any of the Financing Commitments. Parent and Merger Sub shall keep the Company informed on a reasonably current basis in reasonable detail of the status of the Financing. (db) ~~Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior~~ Prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation ofClosing, the ~~Debt Commitment Letter~~Company shall provide to Parent and Merger Sub, ~~(w)~~ and shall cause its Subsidiaries to, and shall use commercially reasonable efforts to cause the ~~aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction~~respective officers, ~~together with other cash~~ employees and ~~cash equivalents available to Parent~~advisors, ~~is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement~~including legal and accounting, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries ~~pursuant~~ to, provide to ~~Section 6.14 shall no longer be~~ Parent and Merger Sub all cooperation reasonably requested by Parent that is necessary, proper or advisable in ~~effect. Further, Parent shall have~~ connection with the ~~right to substitute commitments in respect of other financings for all~~ Financing or any ~~portion~~ alternative financing, including (i) participation in meetings, presentations, road shows, due diligence sessions and sessions with rating agencies, (ii) assisting with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses, business projections and similar documents required or advisable in connection with the Debt Financing ~~from the same and/or~~ or any alternative financing, including execution and delivery of customary representation letters in connection with bank information memoranda, (iii) as promptly as practical, furnishing Parent and its Debt Financing or alternative financing sources ~~so long~~ with financial and other information regarding the Company and its Subsidiaries as ~~the aggregate amount~~ may be reasonably requested by Parent and its Debt Financing sources or alternative financing sources, including all financial statements, pro forma financial information, financial data, audit reports and other information of the type required by Regulation S-X and Regulation S-K under the Securities Act and of type and form customarily included in a registration statement on Form S-1 (or any applicable successor form) under the Securities Act for a public offering or private placements pursuant to Rule 144A under the Securities Act, as applicable (including, to the extent applicable with respect to such financial statements, the report of the Company’s auditors thereon and related management discussion and analysis of financial condition and results of operations) to consummate the offering(s) of debt securities contemplated by the Debt ~~Financing~~Financing Commitments or any alternative financing, ~~together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts~~ or as otherwise required ~~to be paid~~ in connection with the Debt Financing or any alternative financing and the transactions contemplated by this Agreement ~~and all conditions precedent~~ or as otherwise necessary in order to ~~funding~~ receive customary “comfort” (including “negative assurance” comfort) from independent accountants in connection with the offering(s) of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt ~~financing~~ securities contemplated by the Debt ~~Commitment Letter as modified pursuant to clause (ii) below~~Financing Commitments or any alternative financing, (iiiv) taking all actions reasonably necessary to permit the lenders involved in the Financing or any ~~reference in this Agreement~~ alternative financing to evaluate the ~~“Debt Commitment Letter” shall be deemed to include~~ Company’s current assets, cash management and accounting systems, policies and procedures relating thereto for the ~~Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect~~purposes of establishing collateral arrangements, and (~~iii~~v) taking all corporate actions reasonably necessary to permit the consummation of the Debt Financing or any ~~reference in this Agreement~~ alternative financing and to ~~“fee letter” shall~~ permit the proceeds thereof, together with the cash at the Company and its Subsidiaries, to be ~~deemed to include any fee letter relating~~ made available to the Company on the Closing Date to consummate the Merger. Parent shall, promptly upon request by the Company, reimburse the Company for all out-of-pocket accounting costs incurred by the Company or its Subsidiaries in connection with the performance of the provisions of this Section 6.14(b). The Company hereby consents to the reasonable use of its and its Subsidiaries’ logos in connection with the Debt ~~Commitment Letter~~ Financing or any alternative financing, provided that such logos are used solely in a manner that is not ~~superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter~~ intended to ~~the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required~~ nor reasonably likely to ~~effect the repayment of all indebtedness under~~ harm or disparage the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its ~~Affiliates’ obtaining funds to consummate~~ Subsidiaries or the ~~Merger~~ reputation or goodwill of the Company or any of its Subsidiaries and ~~the transactions contemplated by this Agreement~~its or their marks.

Appears in 1 contract

Sources: Merger Agreement (Sm&A)

Financing. (a) During the Pre-Closing Period, Parent may execute Subscription Agreements with Equity Investors. (b) Subject to the terms and conditions of this Agreement, during the Pre-Closing Period, Parent shall ~~use~~ use, and shall cause its Affiliates to use, its reasonable best efforts to ~~take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and~~ obtain the ~~Debt~~ proceeds of the Financing on the terms and conditions described in the ~~Debt~~ Commitment ~~Letter pursuant to the terms thereof (including any “market flex” provisions)~~ Letters, including using ~~its~~ reasonable best efforts to ~~seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s~~(i) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement. (b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate ~~and enter into~~ definitive agreements with respect to the ~~Debt Commitment Letter~~ Committed Financing (the “Definitive Debt ~~Financing~~ Agreements”) on consistent with the terms and conditions ~~that are not materially less favorable to Parent than those~~ contained in the Debt Commitment Letter, (Cii) to satisfy (or, if deemed advisable by Parent, obtain the waiver of) on a timely basis ~~(or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger,~~ all conditions ~~to receipt of~~ in the ~~full amount of the~~ Subscription Agreements, Debt ~~Financing at the Closing set forth therein~~ Commitment Letter, Fee Letter and such Definitive Debt Agreements that are within its control (including payment of all fees and expenses) and comply with its obligations thereunder, (iii) maintain in effect the Subscription Agreements, Debt Commitment Letter and Fee Letter in accordance with their terms and (iv) diligently enforce all of its rights under the Subscription Agreements and Debt Commitment Letter (and any definitive agreements related thereto), provided, however, that Parent shall not be required to bring any enforcement action against any Equity Financing Sources or ~~subject~~ Debt Financing Source to enforce its ~~influence and~~rights under the applicable Financing. Parent shall not and shall cause its Affiliates not to take or refrain from taking, ~~upon satisfaction~~ directly or indirectly, any action that could reasonably be expected to result in a default under or failure of any of the conditions ~~set forth in~~ contained in, or materially impair, delay or prevent consummation of the Financing contemplated by the Subscription Agreements and the Debt Commitment ~~Letter, to consummate the~~ Letter or in any Definitive Debt ~~Financing at or prior~~ Agreement related to the ~~Closing~~Committed Financing. (c) Subject to the terms hereof, ~~(D)~~ Parent shall use, and shall cause its Affiliates to use, reasonable best efforts to comply with its ~~obligations~~ obligations, and enforce its rights, under the ~~Debt~~ Commitment ~~Letter, and (E) to consummate the Debt Financing at or prior~~ Letters. Parent shall give Seller prompt notice of any material breach by any party to the ~~Effective Time. In the event that all conditions precedent expressly set forth in the Debt~~ Commitment ~~Letter have been or, upon funding~~ Letters of which Parent has become aware or any termination (or alleged or purported termination) of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment ~~Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing~~Letters. Parent shall keep ~~the Company~~ Seller informed on a reasonably current basis ~~and~~ in reasonable detail of the status of its efforts to ~~arrange~~ obtain the ~~Debt Financing~~proceeds of the Financing and shall not permit any amendment or modification to, ~~and~~or any waiver of any material provision or remedy under, ~~promptly following request by~~ the Company, provide to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if Commitment Letters entered into at ~~any time~~ or prior to the ~~Closing Date~~ date hereof if such amendment, modification, waiver or remedy (i) would materially delay the ~~Debt Commitment Letter is terminated for any reason~~occurrence of the Closing, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) reduces the aggregate amount of the ~~Debt~~ Financing, (iii) adds or imposes new conditions or amends the existing conditions to the drawdown of the Financing ~~committed under~~ or (iv) is adverse to the ~~Debt Commitment Letter following such reduction~~interests of Seller, ~~together with other cash and cash equivalents available~~ in each case, in any material respect. Notwithstanding the foregoing, failure to ~~Parent, is sufficient~~ obtain the Cash Equity shall not relieve Parent of its obligation to ~~pay all amounts required to be paid in connection with~~ consummate the transactions contemplated by this Agreement, whether or not the Cash Equity is available. (xd) In the ~~proceeds~~ event that any portion of ~~such debt offerings or other incurrences have been received by Parent~~ the Committed Financing becomes unavailable on the terms and conditions (including any “flex provisions”) contemplated in ~~cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to~~ the Debt Commitment Letter ~~relating thereto will be promptly provided to~~ and the ~~Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence~~Fee Letter, ~~the obligations~~ regardless of the ~~Company~~ reason therefor, and ~~its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any~~ such portion of the ~~Debt~~ Committed Financing ~~from~~ is required to fund the ~~same and/or~~ transactions contemplated by this Agreement on the Closing Date, Parent will (i) as promptly as practicable following the occurrence of such event, use its reasonable best efforts to obtain alternative financing ~~sources so long as~~ (the ~~aggregate~~ “Alternative Financing”) (in an amount ~~of the Debt Financing~~sufficient, when taken together with ~~other~~ any then-available Financing pursuant to any then-existing Debt Commitment Letter, the then-existing Fee Letter and available cash ~~and cash equivalents available to~~ of Parent, ~~is sufficient~~ to ~~pay all amounts required to be paid in connection with~~ consummate the transactions contemplated by this Agreement and ~~all conditions precedent~~ to ~~funding~~ pay related fees and expenses earned, due and payable as of the Closing Date) on terms not less favorable in the aggregate to the Buyer Group than those contained in either the Debt Commitment Letter and the Fee Letter that the Alternative Financing would replace (taking into account any flex provisions) from the same or other sources and which do not include any incremental conditionality to the consummation of such ~~financing are~~Alternative Financing that are more onerous to Parent, Seller and the Atlas Companies (in each case, in ~~respect of certainty of funding, equivalent to (or more favorable to~~ the ~~Company than~~aggregate) than the conditions ~~precedent~~ set forth in the Debt Commitment ~~Letter, to supplement or replace~~ Letter (as applicable) in effect as of the ~~Debt Financing~~ date of this Agreement and (~~“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect~~ ii) immediately notify Seller of such ~~Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters~~ unavailability and ~~associated engagement letters (solely in~~ the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Companyreason therefor. ~~In the event any New Debt Commitment Letter is obtained, (i) any reference~~ Notwithstanding anything in this Agreement to the ~~“Debt~~ contrary, under no circumstances shall Parent or its Affiliates be obligated to provide Financing~~” shall include~~ . (e) For purposes of the ~~debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii~~foregoing Section 6.17(a) ~~below~~through Section 6.17(d), (iii) ~~any reference in this Agreement to~~ the term “Debt Commitment Letter” shall be deemed to include ~~the~~ any commitment letter (or similar agreement) with respect to any Alternative Financing (that is debt financing) arranged in compliance herewith (and any Debt Commitment Letter ~~which is not superseded by a New Debt Commitment Letter~~ remaining in effect at the time in ~~question and each New Debt Commitment Letter to~~ question), (ii) the ~~extent then in effect, and (iii) any reference in this Agreement to~~ term “~~fee letter~~Fee Letter” shall be deemed to include any fee letter ~~relating~~ (or similar agreement) and engagement letter (or similar agreement) with respect to any Alternative Financing arranged in compliance with this Section 6.17(e), (iii) the term “Debt Financing Sources” shall be deemed to include any Debt Financing Sources providing the Alternative Financing (that is debt financing) arranged in compliance herewith, (iv) the term “Subscription Agreement” shall be deemed to include any subscription agreement with respect to any Alternative Financing (that is equity financing) arranged in compliance herewith (and any Subscription Agreements remaining in effect at the time in question) and (v) the term “Equity Financing Sources” shall be deemed to include any Equity Financing Sources providing the Alternative Financing (the is equity financing) arranged in compliance herewith. Parent shall keep Seller reasonably informed on a reasonably current basis of the status of its efforts to consummate the Financing. Parent shall provide Seller with prompt written notice of any material breach, threatened material breach or material default by any party to any Subscription Agreement, the Debt Commitment Letter ~~that is not superseded~~ or the Definitive Debt Agreements of which Parent gains knowledge and the receipt of any written notice or other written communication from any Equity Financing Sources or Debt Financing Sources with respect to any material breach, threatened material breach or material default or, termination or repudiation by any ~~New~~ party to any Subscription Agreement, Debt Commitment Letter at or the ~~time in question and each New~~ Definitive Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s Agreements or any ~~of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement~~provision thereof.

Appears in 1 contract

Sources: Unit Purchase Agreement (Boxwood Merger Corp.)

Financing. ~~(a)~~ Subject to the other terms and conditions of this Agreement, ~~Parent~~ the Buyer shall use ~~its~~ reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable ~~or proper~~ to arrange and ~~obtain~~ consummate the ~~Debt~~ Equity Financing on the terms and conditions described in the ~~Debt~~ Equity Commitment ~~Letter pursuant to the terms thereof (including any “market flex” provisions)~~ Letters, including using ~~its~~ reasonable best efforts to ~~seek~~ (x) satisfy, or cause to ~~enforce its rights under the Debt Commitment Letter~~ be satisfied, on a timely basis, any conditions within Buyer’s control to funding in the Equity Commitment Letters and (y) upon satisfaction of the conditions set forth in Article VI (Conditions) (other than those that, by their nature, are to be satisfied at the Closing, all of which are capable of being satisfied at the Closing), consummate the Equity Financing at or prior to the Closing. Upon the reasonable written request of the Seller, Buyer shall provide Seller with a reasonable update of the status of its efforts to arrange the Equity Financing. The Buyer shall promptly notify the Seller in writing (A) if there exists any actual or potential breach or default (or any event or circumstance that, with or without notice, lapse of a time or both, would reasonably be expected to give rise to any material breach ~~thereof~~ or default) by any party to the Equity Commitment Letters, (B) of the receipt by the ~~financing provider(s~~Buyer or any Sponsor or any of their respective Representatives of any written or oral notice with respect to any potential or actual breach, default, termination or repudiation by any party to the Equity Commitment Letters or (C) ~~thereunder~~if, for any reason, the Buyer no longer believes in good faith that it will be able to obtain all or any portion of the Equity Financing contemplated by the Equity Commitment Letters on the terms described therein. ~~Parent~~ The Buyer shall ~~not, without the Company’s prior written consent, permit~~ not consent to (a) any ~~amendment, supplement, replacement~~ amendment or modification ~~to be made~~ to, or any waiver of any provision under, the ~~Debt~~ Equity Commitment ~~Letter~~ Letters if such amendment~~, supplement, replacement~~, modification or waiver (Ai) ~~reduces~~ decreases the aggregate amount of the ~~cash proceeds from the Debt Financing or~~ Equity Financing, (Bii) imposes new or additional conditions ~~to the initial funding~~ or otherwise expands any of the conditions to the receipt of the ~~Debt Financing,~~ Equity Financing or (iii) would otherwise ~~expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would~~ reasonably be expected to (xA) prevent, jeopardize or delay ~~or prevent~~ the Closing, (B) make the funding ~~in full~~ of the ~~Debt~~ Equity Financing ~~(or satisfaction of the conditions~~ materially less likely to ~~the Debt Financing) on the Closing Date,~~ occur or (yC) adversely ~~affect~~ impact the ability of ~~Parent~~ the Buyer to enforce its rights against the other parties to the ~~Debt~~ Equity Commitment ~~Letter or~~ Letters, in each case without prior consent of the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing)Seller. ~~Parent~~ The Buyer shall promptly ~~deliver~~ furnish to the ~~Company true, complete and correct copies~~ Seller a copy of any ~~such~~ amendment, ~~modification~~ modification, waiver or ~~replacement. (b) Parent~~ consent of or relating to the Equity Commitment Letters. The Buyer shall, and shall cause its Affiliates ~~and Representatives~~ to, ~~use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended~~refrain from taking, ~~supplemented~~directly or indirectly, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action ~~or enter into any transaction~~ that would reasonably be expected to ~~materially impair, delay or prevent consummation~~ result in the failure of ~~all or~~ any ~~portion~~ of the ~~Debt Financing. (d) Parent shall have~~ conditions contained in the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Equity Commitment Letter ~~following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid~~ or in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter definitive agreement relating to the ~~Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect~~Equity Financing. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.

Appears in 1 contract

Sources: Interest Purchase Agreement (SVB Financial Group)

Financing. (a) ~~Subject to the terms and conditions of this Agreement,~~ Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to ~~arrange~~ consummate and obtain the ~~Debt~~ Financing on the terms and conditions described in the Debt Commitment Letter ~~pursuant to~~ by the ~~terms thereof (including any “market flex” provisions)~~ Closing, including using ~~its~~ reasonable best efforts to ~~seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s~~(i) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement. (b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect ~~the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided~~ and comply in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply material respects with its obligations under the Debt Commitment Letter, ~~and~~ (Eii) ~~to consummate the Debt Financing at or prior~~ satisfy on a timely basis all conditions to the ~~Effective Time. In~~ funding of the ~~event that all conditions precedent expressly~~ Financing set forth in the Debt Commitment Letter ~~have been or, upon funding of~~ or the ~~Debt Financing will be, satisfied, Parent~~ definitive financing agreements and ~~Sub shall use their reasonable best efforts to enforce their rights under,~~ (iii) negotiate and ~~cause~~ enter into definitive agreements with respect thereto on the ~~Financing Sources, lenders~~ terms and ~~the other persons providing or committing to provide the Debt Financing to comply with their obligations under~~ conditions contemplated by the Debt Commitment Letter (including after giving effect to any “market flex” provisions in connection with the Financing) or, if available, on other terms that are acceptable to Parent and ~~definitive financing agreements~~ would not adversely affect in any material respect (including with respect to timing and conditionality) the ability of Parent, Opco and Merger Sub to ~~fund on or before~~ consummate the ~~Effective Time~~ transactions contemplated herein (the “Debt ~~Financing~~Financing Agreements”). Parent shall keep the Company informed on a ~~current~~ regular basis and in reasonable detail of the status of its efforts to arrange the ~~Debt~~ Financing~~, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. (c)~~ . Without limiting the effect of the foregoing, Parent ~~agrees to notify~~ shall give the Company ~~promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date~~ prompt notice of (i) any material breach or default by any other party to the Debt Commitment Letter ~~is terminated for any reason~~or the Debt Financing Agreements of which Parent becomes aware, (ii) ~~Parent becomes aware~~ the receipt of any ~~breach~~ written notice or ~~default (A)~~ other written communication with respect to any actual or potential breach, default, termination or repudiation by any ~~Financing Source~~ party to the Debt Commitment Letter or any Debt Financing Agreement or ~~(B)~~ any ~~other party~~ provision thereof or any material dispute or disagreement between or among any parties to the Debt Commitment Letter or any Debt Financing Agreement ifwith respect to the obligations to fund the Financing or the amount of the Financing to be funded at the Closing, in and (iii) the ~~case of this clause (B), such breach~~ expiration or ~~default would reasonably be expected to affect the availability~~ termination for any reason of the Debt ~~Financing~~ Commitment Letter or ~~(iii) a counterparty indicates in writing~~ the commitments thereunder or ~~orally that it will not provide, or it refuses to provide,~~ if for any reason all or any portion of the ~~Debt~~ Financing ~~contemplated by~~ becomes unavailable. (b) Parent shall not, and shall not permit OpCo or Merger Sub to, agree to or permit any termination, amendment, replacement, supplement or other modification of, or waive any of its material rights under, the Debt Commitment Letter on or the ~~terms set forth therein. Parent~~ Debt Financing Agreements without the Company’s prior written consent (which consent shall ~~promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c~~not be unreasonably withheld, conditioned or delayed)~~. Parent shall not~~; provided that Parent, ~~nor shall it permit any of its Affiliates to~~OpCo and Merger Sub may, without the Company’s prior written consent ~~of the Company, take any action or~~ (i) enter into any ~~transaction~~ amendment, replacement, supplement or other modification to or waiver of any provision of the Debt Commitment Letter or the Debt Financing Agreements that does not (w) reduce the aggregate amount of net cash proceeds from the Financing below the amounts otherwise required to be paid by Parent, OpCo or Merger Sub hereunder in cash, (x) impose new or additional conditions to the funding of the financing, (y) adversely impact the ability of Parent or Merger Sub to enforce its rights against the other parties to the Debt Commitment Letter or the Debt Financing Agreements or (z) otherwise contain any provisions that would reasonably be expected to prevent, materially ~~impair,~~ delay or ~~prevent~~ materially impede the consummation of ~~all~~ the Financing or ~~any portion of~~ the ~~Debt Financing.~~ Transactions; and (dii) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under amend the Debt Commitment Letter ~~following such reduction~~to add lenders, ~~together with other cash and cash equivalents available to Parent~~lead arrangers, ~~is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement~~book runners, ~~(x) the proceeds of such debt offerings~~ syndication agents or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do similar entities who had not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by executed the Debt Commitment Letter as ~~modified pursuant to clause (ii) below, (ii) any reference in~~ of the date of this Agreement so long as any such addition would not reasonably be expected to prevent, materially delay or materially impede the consummation of the Financing or the Transactions. For the avoidance of doubt, each of Parent, OpCo or Merger Sub may, if it so determines in its discretion, arrange for alternative financing for the Transactions from a third party or parties (and thereafter the “Debt Commitment Letter” and “Financing” as defined herein shall refer to such financing commitment) on terms and conditions not less favorable to Parent (taken as a whole), if such alternative financing does not contain any provisions that would otherwise be ~~deemed to include~~ prohibited by the ~~Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter~~ proviso to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectimmediately preceding sentence. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.

Appears in 1 contract

Sources: Merger Agreement (Energy Xxi (Bermuda) LTD)

Financing. (a) ~~Subject~~ Without Seller’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed), Acquiror shall not agree to any replacement, amendment or modification to the ~~terms and~~ Financing Commitments if such replacement, amendment or modification would (x) reduce the amount of aggregate cash proceeds available from the Financing to less than required to consummate the Closing, (y) impose new or additional conditions precedent that would reasonably be expected to materially delay or prevent the Closing or make the funding of ~~this Agreement, Parent~~ the Financing materially less likely to occur or (z) materially impact the ability of Acquiror to enforce its rights against other parties to the Financing Commitments of the definitive agreements with respect thereto. Acquiror shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things ~~necessary, advisable or proper~~ necessary to arrange and obtain the ~~Debt~~ Financing on the terms and conditions described in the ~~Debt Commitment Letter pursuant to the terms thereof~~ Financing Commitments (including ~~any “market flex” provisions)~~ the flex provisions therein, but not in excess or outside of such provisions unless so agreed by Acquiror, and taking into account the anticipated timing of the Marketing Period), including using its reasonable best efforts to ~~seek to enforce its rights under~~ take such actions as set forth on Schedule 6.9. Without limiting the ~~Debt Commitment Letter in~~ generality of the ~~event of a breach thereof by the financing provider(s) thereunder. Parent~~ foregoing, Acquiror shall ~~not, without the Company’s prior~~ give Seller prompt written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver notice: (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement. (b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default ~~(A)~~ or threatened breach or default by any ~~Financing Source~~ party to ~~the Debt Commitment Letter or~~ any ~~Debt~~ Financing ~~Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if~~Commitment, in ~~the case~~ each case, of ~~this clause (B)~~which Acquiror becomes aware, if such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a material delay of the Closing Date; and (B) of the receipt of any written notice or other written communication from any Person with respect to any breach or default ~~under~~or threatened breach, termination or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded repudiation by any ~~New Debt Commitment Letter at the time in question and each New Debt Commitment Letter~~ party to the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any ~~of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.~~Financing

Appears in 1 contract

Sources: Transaction Agreement (Wellcare Health Plans, Inc.)

Financing. (a) Subject to the terms and conditions of this Agreement, prior to Closing, Parent shall ~~use~~ use, and shall cause its Affiliates to use, commercially reasonable efforts to obtain the proceeds of the PIPE Investment on the terms and conditions described in the Subscription Agreements, including using reasonable best efforts to ~~take~~(i) satisfy (or, if deemed advisable by Parent, obtain the waiver of) on a timely basis all conditions in the Subscription Agreements that are within its control (including payment of all fees and expenses) and comply with its obligations thereunder, (ii) maintain in effect the Subscription Agreements in accordance with their terms and (iii) diligently enforce all of its rights under the Subscription Agreements (and any definitive agreements related thereto), including to commence or pursue litigation for the purposes of enforcing the obligations of the PIPE Investors to fund the PIPE Investment. Parent shall not and shall cause its Affiliates not to take or refrain from taking, directly or indirectly, any action that could reasonably be expected to result in a default under or failure of any of the conditions contained in, or ~~cause~~ materially impair, delay or prevent consummation of the PIPE Investment contemplated by the Subscription Agreement. Parent shall give the Company prompt notice of any material breach by any party to ~~be taken, all actions~~ the Subscription Agreements of which Parent has become aware or any termination (or alleged or purported termination in writing) of any Subscription Agreements. Parent shall keep the Company informed on a reasonably current basis in reasonable detail of the status of its efforts to obtain the proceeds of the PIPE Investment and ~~to do~~shall not permit any amendment or modification to, or any waiver of any provision or remedy under, any Subscription Agreement without the prior written consent of the Company; provided, that any amendment, modification or waiver that is solely ministerial in nature or otherwise immaterial and does not affect any economic or any other material term of a Subscription Agreement shall not require the prior written consent of the Company. (b) Subject to the terms and conditions of this Agreement, prior to Closing, the Company shall cause ▇▇▇▇▇▇▇ to ~~be done, all things necessary, advisable or proper~~ use reasonable best efforts to ~~arrange and~~ obtain the proceeds of the Debt Financing on the terms and conditions described in the Debt Commitment Letter ~~pursuant~~ (subject to ~~the terms thereof (including~~ any “market flex” ~~provisions)~~ provisions contained in the Debt Fee Letter), including using ~~its~~ reasonable best efforts to ~~seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s~~(i) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement. (b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate ~~and enter into~~ definitive agreements with respect to the Debt ~~Commitment Letter~~ Financing (the “Definitive Debt ~~Financing~~ Agreements”) on consistent with the terms and conditions ~~that are not materially less favorable to Parent than those~~ contained in the Debt Commitment Letter, (Cii) to satisfy on a timely basis ~~(or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger,~~ all conditions ~~to receipt of the full amount of~~ in the Debt ~~Financing at the Closing set forth therein~~ Commitment Letter that are within its control ~~or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to~~ and comply with its obligations ~~under the Debt Commitment Letter~~thereunder, ~~and~~ (Eiii) ~~to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth~~ maintain in effect the Debt Commitment Letter ~~have been or, upon funding of the~~ and Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply Fee Letter in accordance with their ~~obligations~~ terms and (iv) diligently enforce all of its rights under the Debt Commitment Letter and ~~definitive financing agreements~~ Debt Fee Letter, provided, however, that the Company, ▇▇▇▇▇▇▇ and their Affiliates shall not be required to commence or pursue litigation, and neither Parent nor Merger Sub shall have any right to compel the Company, ▇▇▇▇▇▇▇ or their Affiliates to commence or pursue litigation, to enforce the obligations of the Debt Financing Sources to fund ~~on or before the Effective Time~~ the Debt Financing. The Company shall not and shall cause its Affiliates not to take or refrain from taking, directly or indirectly, any action that could reasonably be expected to result in a default under or failure of any of the conditions contained in, or materially impair, delay or prevent consummation of the Debt Financing contemplated by the Debt Commitment Letter or in any Definitive Debt Agreement related to the Debt Financing. (c) The Company shall give Parent prompt notice of any material breach by any party to the Debt Commitment Letter of which the Company has become aware or any termination (or alleged or purported termination in writing) of the Debt Commitment Letter. The Company shall keep ~~the Company~~ Parent informed on a reasonably current basis ~~and~~ in reasonable detail of the status of its efforts to ~~arrange~~ obtain the proceeds of the Debt ~~Financing~~Financing and shall not permit any amendment or modification to, ~~and~~or any waiver of any material provision or remedy under, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter ~~is terminated for any reason~~entered into at or prior to the date hereof if such amendment, modification, waiver or remedy (i) would materially delay the occurrence of the Closing, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as reduces the aggregate amount of the Debt Financing, ~~together with other cash~~ or (iii) adds or imposes new conditions or amends the existing conditions to the drawdown of the Debt Financing, in each case, in any material respect. (d) Prior to the earlier of the Closing and ~~cash equivalents available~~ the valid termination of this Agreement pursuant to ~~Parent~~its terms, ~~is sufficient~~ Parent and Merger Sub agree, and Parent and Merger Sub shall cause its appropriate officers and employees, to ~~pay all amounts required~~ use reasonable best efforts to ~~be paid~~ cooperate in connection with the ~~transactions contemplated by this Agreement and all conditions precedent to funding~~ arrangement of ~~such financing are, in respect~~ the Debt Financing (including the satisfaction of ~~certainty of funding, equivalent to (or more favorable to the Company than)~~ the conditions precedent set forth in the Debt Commitment ~~Letter~~Letter that are within its control) as may be reasonably requested by the Company and ▇▇▇▇▇▇▇, including by (i) participating in (including making appropriate officers available for) a reasonable number of meetings, presentations, due diligence sessions, drafting sessions and sessions with rating agencies at mutually agreeable times and locations and upon reasonable advance notice, (ii) assisting with the preparation of customary marketing materials, rating agency presentations and offering documents (including a public side version), (iii) executing and delivering customary management authorization letters and confirmations to ~~supplement or replace~~ the Debt Financing ~~(“Alternative~~ Sources authorizing the distributions of information to prospective lenders and containing customary representations to the Debt Financing Sources in connection with the marketing of the Debt Financing”, (iv) furnishing the Company and ▇▇▇▇▇▇▇ at least three Business Days prior to the Closing Date (to the extent requested at least ten Business Days prior to the Closing Date), with all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the Patriot Act, (v) cooperating reasonably with the Debt Financing Sources’ due diligence, to the extent customary and reasonable and (vi) reasonably cooperating with the marketing and syndication efforts of ▇▇▇▇▇▇▇ and the Debt Financing Sources. (e) Prior to the earlier of the Closing and the valid termination of this Agreement pursuant to its terms, the Stockholder Representative and the Company agree, and the Company shall cause each Group Company and its and their appropriate officers and employees, to use reasonable best efforts to cooperate in connection with the arrangement of the PIPE Investment (including the satisfaction of the conditions precedent set forth in the Subscription Agreements) as may be reasonably requested by Parent, including by (i) participating in (including making appropriate officers of the Company and its subsidiaries available for) a reasonable number of meetings, presentations, due diligence sessions, drafting sessions and sessions with rating agencies at mutually agreeable times and locations and upon reasonable advance notice and (ii) assisting with the preparation of customary materials for actual and potential PIPE Investors, rating agency presentations and private placement memoranda required in connection with the PIPE Investment. ~~True~~Notwithstanding the foregoing, ~~correct~~ (A) such requested cooperation shall not unreasonably interfere with the ongoing operations of any Group Company, (B) no Group Company shall be required to pay any commitment or other similar fee or incur any other Liability or obligation in connection with the PIPE Investment prior to the Closing, (C) no Group Company nor any of their respective officers, directors, or employees shall be required to execute or enter into or perform any agreement with respect to the PIPE Investment that is not contingent upon the Closing or that would be effective prior to the Closing (other than any customary management representation and ~~complete copies~~ authorization letter in connection with marketing materials contemplated by the Financing) and (D) Persons who are on the board of ~~each alternative financing~~ directors or the board of managers (or similar governing body) of any Group Company prior to the Closing in their capacity as such shall not be required to pass resolutions or consents to approve or authorize the execution of the PIPE Investment. Nothing contained in this Section 6.17 or otherwise shall require any Group Company, prior to the Closing, to be an issuer or other obligor with respect to the PIPE Investment. (f) None of the Stockholder Representative, the Group Companies, their Affiliates or any of their respective Representatives shall be required to take any action that would subject such Person to actual or potential liability, to bear any cost or expense or to pay any commitment or other similar fee or make any other payment or incur any other liability or provide or agree to provide any indemnity in connection with the PIPE Investment or their performance of their respective obligations in connection with the PIPE Investment under this Section 6.17 or any information utilized in connection therewith. Parent shall indemnify and hold harmless the Stockholder Representative, the Group Companies, their Affiliates and their respective Representatives from and against any and all Loss suffered or incurred by them in connection with the arrangement of the PIPE Investment and the performance of their respective obligations in connection with the PIPE Investment under this Section 6.17 and any information utilized in connection therewith, for any of the foregoing except to the extent the same is the result of (i) claims based upon the accuracy of any historical information provided by or on behalf of the Stockholder Representative, any Group Company or their respective Affiliates and Representatives expressly for use in connection with the arrangement of the PIPE Investment or (ii) the gross negligence, willful misconduct or fraud committed by or on behalf of the Stockholder Representative, any Group Company or their respective Affiliates and Representatives. (g) The Company shall, and the Company shall cause the Company Subsidiaries to, take all such actions as are appropriate to effect the Refinancing, the Trust Preferred Redemption and the Junior Debenture Redemption (as such terms are defined in the Debt Commitment Letter) on the Closing Date. The Company shall, and the Company shall cause the Company Subsidiaries to, deliver all customary notices and take all other reasonably necessary actions to facilitate the termination on the Closing Date of all commitments in respect of the Existing Credit Agreements, the repayment in full on the Closing Date of all obligations in respect of such ~~Alternative Debt Financing~~ Indebtedness, and the release on the Closing Date of any Liens securing such Indebtedness and guarantees in connection therewith. In furtherance and not in limitation of the foregoing, the Company and its Subsidiaries shall use reasonable best efforts to deliver to Parent prior to the Closing executed payoff letters with respect to Existing Credit Agreements (each, a “~~New Debt Commitment~~ Payoff Letter”) in form and substance customary for transactions of this type, from the applicable agents on behalf of the persons to whom such Indebtedness is owed, which Payoff Letters together with any related release documentation shall, among other things, include the payoff amount and provide that Liens (and guarantees), ~~together~~ if any, granted in connection with ~~all related fee letters and associated engagement letters (solely in~~ the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter Existing Credit Agreements relating to the ~~Debt Commitment Letter that is not superseded by any New Debt Commitment~~ assets, rights and properties of the Company and its Subsidiaries securing or relating to such Indebtedness, shall, upon the payment of the amount set forth in the applicable Payoff Letter at ~~the time in question and each New Debt Commitment Letter~~ or prior to the ~~extent then in effect. (e~~Effective Time, be released and terminated. The obligations of the Company pursuant to this Section 6.17(g) ~~On the Closing Date,~~ shall be subject to Parent ~~shall provide~~ or Merger Sub providing or causing to be provided all funds required to effect all such repayments at or prior to the Effective Time; provided that, no such repayment ~~of all indebtedness under~~ shall be required to be made prior to the ~~Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii)~~Effective Time. (fh) ~~Notwithstanding anything to the contrary contained herein~~None of Parent, ~~Parent’s obligations hereunder are not subject to a condition regarding Parent’s~~ Merger Sub, their Affiliates or any of ~~its Affiliates’ obtaining funds~~ their respective Representatives shall be required to ~~consummate~~ take any action that would subject such Person to actual or potential liability, to bear any cost or expense or to pay any commitment or other similar fee or make any other payment or incur any other liability or provide or agree to provide any indemnity in connection with the Debt Financing or their performance of their respective obligations in connection with the Debt Financing under this Section 6.17 or any information utilized in connection therewith. The Company shall indemnify and hold harmless Parent, Merger Sub, their Affiliates and their respective Representatives from and against any and all Loss suffered or incurred by them in connection with the arrangement of the Debt Financing and the ~~transactions contemplated~~ performance of their respective obligations in connection with the Debt Financing under this Section 6.17 and any information utilized in connection therewith, for any of the foregoing except to the extent the same is the result of (i) claims based upon the accuracy of any historical information provided by ~~this Agreement~~or on behalf of Parent, Merger Sub or their respective Affiliates and Representatives expressly for use in connection with the arrangement of the Debt Financing or (ii) the gross negligence, willful misconduct or fraud committed by or on behalf of Parent, Merger Sub or their respective Affiliates and Representatives.

Appears in 1 contract

Sources: Merger Agreement (Hillman Companies Inc)

Financing. (a) ~~Subject~~ Each of Parent and Merger Sub shall, and Parent shall cause Merger Sub to, use reasonable best efforts to do, or cause to be done, all things necessary, proper or advisable to obtain the proceeds of the Financing on terms (including the “market flex” provisions) and conditions no less favorable to Parent than those described in the Commitment Letters, including using reasonable best efforts, after the date of this Agreement and prior to the earlier of the Closing Date and the date this Agreement is terminated in accordance with its terms, to: (i) negotiate definitive financing agreements with respect to the Financing (the “Definitive Financing Agreements”) on terms and conditions no less favorable to Parent than those contained in the Commitment Letters (including any “market flex” terms and conditions), provided, however, that in no event shall any of the Definitive Financing Agreements (A) reduce the aggregate amount of the Financing provided for in the Commitment Letters (including by changing the amount of fees or original issue discount contemplated by the Commitment Letters) such that Parent would not have sufficient cash proceeds to permit Parent to pay the Required Amount on the Closing Date; (B) expand the conditions or other contingencies relating to the receipt or funding of the Financing beyond those expressly set forth in the Commitment Letters, amend or modify any of such conditions or other contingencies or impose any new or additional condition or other contingency relating to the receipt or funding of the Financing, in each case, in a manner that would reasonably be expected to (x) make the funding of the Financing (or the satisfaction of the conditions to obtaining the Financing) less likely to occur or (y) materially delay or prevent the Closing; (C) contain terms (other than those terms expressly set forth in the Commitment Letters) that could reasonably be expected to materially delay the Effective Time or the date on which the Financing would be obtained or make the timely funding of the Financing less likely to occur; or (D) adversely impacts the ability of Parent or Merger Sub to enforce its rights against any of the other parties to the Commitment Letters or Definitive Financing Agreements; (ii) enter into Definitive Financing Agreements with respect thereto and consummate the Financing contemplated by the Commitment Letters substantially concurrently with the Closing; (iii) satisfy on a timely basis (taking into account the anticipated timing of the Marketing Period and the Closing) or obtain the waiver of all covenants and conditions in the Commitment Letters and the Definitive Financing Agreements that are within Parent’s control; (iv) pay in a timely manner any commitment or other fees that are or become payable under any of the Commitment Letters or Definitive Financing Agreements on or following the Date of this Agreement; (v) enforce its rights under the Commitment Letters and Definitive Financing Agreements; and (vi) use its reasonable best efforts to cause the Financing to be funded in full substantially concurrently with the Closing. (b) Parent will furnish promptly upon request correct and complete copies of all material Definitive Financing Agreements to the Company. Without limiting any of its obligations hereunder, Parent shall keep the Company informed in writing upon request on a reasonably current basis in reasonable detail with respect to the status of the Financing. Without limiting the foregoing, Parent shall give the Company and the Company’s legal counsel reasonable opportunity to review and comment upon drafts of all commitment letters and Definitive Financing Agreements, and shall give due consideration to all reasonable comments and changes proposed on behalf of the Company. Without limiting the generality of the foregoing, Parent and Merger Sub shall give the Company prompt notice upon having knowledge of (i) any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) on the part of any party to any Commitment Letter or Definitive Financing Agreement, (ii) the receipt by Parent or Merger Sub of any written notice or other written communication from any Person with respect to any actual or potential material breach, default or dispute by or involving any party under any Commitment Letter or Definitive Financing Agreement, (iii) any actual or purported termination, rescission or repudiation of any Commitment Letter or Definitive Financing Agreement, or any provision thereof, (iv) any actual material dispute or disagreement with any Person expected to provide any portion of the Financing and (v) any other circumstance that could reasonably be expected to materially and adversely affect the ability of Parent to obtain, prior to the date the Closing is required to occur in accordance with this Agreement, all or any portion of the Financing on the terms, in the manner or from the sources contemplated by any of the Commitment Letters or Definitive Financing Agreements. (c) Neither Parent nor Merger Sub shall agree to or permit any amendment or modification to be made to, or any waiver of any provision (including any termination or reduction of any commitment and/or any consent to any assignment, termination or release) or remedy under (including through the execution of any “side” letter), any Commitment Letter or Definitive Financing Agreement if such amendment, modification or waiver (i) reduces the aggregate amount of the Financing provided for in the Commitment Letters (including by changing the amount of fees or original issue discount contemplated in the Commitment Letters) such that Parent would not have sufficient cash proceeds to permit Parent to pay the Required Amount on the Closing Date or (ii) would reasonably be expected to (x) make the funding of the Financing (or the satisfaction of the conditions to obtaining the Financing) less likely to occur, (y) materially delay or prevent the Closing or (z) adversely impact the ability of Parent or Merger Sub to enforce its rights against any of the other parties to the Commitment Letters; provided that (i) Parent may replace, amend, supplement or modify the Debt Commitment Letter to add bona fide lenders, lead arrangers, bookrunners, syndication agents or similar entities (or titles with respect to such entities) that have not executed the Debt Commitment Letter as of the date of this Agreement (it being understood that the aggregate commitments of the lenders party to the Debt Commitment Letter prior to such replacement, amendment, supplement or modification may be reduced in the amount of such additional party’s binding commitments under the relevant replacement, amendment, supplement or modification, which shall otherwise contain the terms set forth in the Debt Commitment Letter immediately prior to such replacement, amendment, supplement or modification, unless any modification (other than the addition of the relevant bona fide lender, lead arranger, bookrunner, syndication agent or similar entity (or additional title)) would otherwise be permitted by the terms of this Section 6.18(c)) and (ii) Parent shall notify the Company in writing of any replacement, amendment, supplement or other modification of, or waiver of any of its rights under, any Commitment Letter reasonably promptly after the time such replacement, amendment, supplement, modification or waiver is agreed. (d) In the event that any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter (including any “market flex” provisions that are contained in the Redacted Fee Letter) (other than as a result of the Company’s failure to satisfy the conditions in Section 7.1 or 7.2), Parent will (i) use its reasonable best efforts to obtain alternative debt financing (in an amount sufficient such that the aggregate funds that would be available to Parent at the Closing will be sufficient to pay the Required Amount) (the “Alternative Financing”); provided that Parent shall not be required to arrange or obtain any Alternative Financing having terms and conditions (including “market flex” provisions), taken as a whole, less favorable to Parent than those contained in the Debt Commitment Letter (after giving effect to any “market flex” provision applicable under the Debt Commitment Letter); it being understood and agreed that in no event shall the obligation of Parent under this clause (d) require Parent to pay fees, interest rates or other amounts that, taken as a whole, exceed the aggregate fees, interest rates or such other amounts contemplated under the Debt Commitment Letter and the Redacted Fee Letter as of the date of this ~~Agreement~~Agreement (including giving effect to any market flex provisions set forth therein); provided, further, that Parent shall provide the Company with a copy of, a new financing commitment letter pursuant to which any Alternative Financing shall be made available to Parent promptly after the time such agreement is agreed, to the extent needed to fund the transactions contemplated by this Agreement (the “New Commitment Letter”) (provided, that the existence and/or amount of fees, flex provisions, pricing terms, pricing caps and other commercially sensitive information set forth therein or in any fee letter may be redacted to the extent consistent with the redactions permitted by the term “Redacted Fee Letter”) which New Commitment Letter shall not include any conditions to the consummation of the Alternative Financing that are more onerous than the conditions set forth in the Debt Financing taken as a whole and (ii) if applicable, promptly notify the Company of such unavailability and the reason therefor. To the extent applicable, Parent shall use its reasonable best efforts to take, or cause to be taken, all ~~actions and to do, or cause to be done, all~~ things reasonably necessary, proper or advisable ~~or proper~~ to arrange promptly and ~~obtain~~ consummate the ~~Debt~~ Alternative Financing on the terms and conditions described in any New Commitment Letter. In the ~~Debt~~ event Alternative Financing is obtained, references in this Agreement to the Financing shall also be deemed to refer to such Alternative Financing, and if one or more commitment letters or definitive financing agreements are entered into or proposed to be entered into in connection with such Alternative Financing, references in this Agreement to the Commitment ~~Letter~~ Letters and the Definitive Financing Agreements shall also be deemed to refer to such commitment letters and definitive financing agreements relating to such Alternative Financing, and all obligations of Parent and Merger Sub pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent this Section 6.18 shall ~~not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to~~ be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions applicable thereto to the ~~initial funding or otherwise expands any of the conditions~~ same extent as Parent’s and Merger Sub’s obligations with respect to the ~~receipt of the Debt~~ Financing~~, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected~~ . (e) Prior to ~~(x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on~~ the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company ~~true, complete and correct copies of any such amendment, modification or replacement. (b) Parent~~ shall, and shall cause its ~~Affiliates~~ Subsidiaries and its and their respective Representatives to, in each case, use ~~its~~ reasonable best efforts ~~(A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended~~to, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable provide to Parent ~~than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of),~~ all cooperation reasonably requested by Parent that is reasonably necessary and ~~in a manner that will not impede the ability~~ customary for financings of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under type contemplated by the Debt Commitment Letter, and at Parent’s sole expense, in connection with Parent’s arrangement and obtaining the Debt Financing, including: using reasonable best efforts to: (Ei) (x) furnish Parent (and Parent may then furnish to applicable Financing Sources) as promptly as practicable, with the Required Information and (y) furnishing any other information related to the Company and its Subsidiaries customarily delivered by a borrower and reasonably necessary for the preparation of a customary confidential information memorandum and other marketing materials used in financing of the type contemplated by the Debt Financing; provided that, notwithstanding anything to the contrary herein, a breach of this Section 6.18(e)(i)(y) shall not give rise to a failure of the condition set forth in Section 7.2(b) to ~~consummate~~ be satisfied unless such breach is the primary cause of the failure of the Debt Financing at to be obtained on or prior to the ~~Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding~~ Closing Date; (ii) cause senior management of the ~~Debt Financing will be~~Company, ~~satisfied~~with appropriate seniority and expertise, ~~Parent and Sub shall use their reasonable best efforts~~ to ~~enforce their rights under~~assist in preparation for, and ~~cause~~ participate in, a reasonable number of investor and lender meetings (including customary one-on-one meetings and calls with or by the ~~Financing Sources~~parties acting as lead arrangers, bookrunners or agents for, and prospective lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time buyers of, the Debt Financing~~. Parent shall keep~~ ) and presentations and sessions with rating agencies in each case, to the ~~Company informed on a current basis~~ extent required in connection with the Debt Financing; (iii) provide assistance with the preparation of materials for rating agency presentations, bank information memoranda, syndication memoranda, lender presentations and other customary marketing materials required in ~~reasonable detail of the status of its efforts to arrange~~ connection with the Debt Financing, ~~and, promptly following request by~~ including the ~~Company, provide~~ execution and delivery of customary authorization letters with respect to the Company ~~copies~~ authorizing the distribution of ~~all executed Debt Financing Agreements.~~information to prospective lenders and investors (including customary 10b-5 and material non-public information representations); (civ) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.[reserved]; (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid assist Parent in connection with ~~the transactions contemplated by this Agreement, (x) the proceeds~~ Parent’s preparation of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations pro forma financial statements of the Company and its Subsidiaries ~~pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion~~ of the ~~Debt~~ type necessary or reasonably requested by the Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required Sources to be ~~paid~~ included in any bank information memoranda or other customary marketing materials, including by providing such financial and other pertinent information regarding the Company and its Subsidiaries and their respective businesses as may be required in connection with the ~~transactions contemplated by this Agreement and all conditions precedent to funding~~ preparation of such ~~financing are, in respect~~ pro forma financial statements; provided that neither the Company nor any of ~~certainty of funding, equivalent~~ its Subsidiaries or Representatives shall be required to provide any information or assistance relating to (A) the proposed debt and equity capitalization that is required for such pro forma financial information or ~~more favorable~~ assumed interest rates and fees and expenses relating to such debt and equity capitalization, (B) any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other pro forma adjustments desired to be incorporated into any information used in connection with the Debt Financing or (C) any information related to Parent or any of its Subsidiaries or any adjustments that are not directly related to the acquisition of the Company; (A) assist in the preparation, execution and delivery of definitive financing documents, including any credit agreement, notes, guarantee and collateral documents, pledge and security documents, customary closing certificates and closing documents and back-up therefor and back-up for legal opinions in connection with the Debt Financing (including, if required certifications are true and correct on the Closing Date, executing and delivering a solvency certificate from the chief financial officer or treasurer (or other comparable officer) of the Company ~~than)~~ (in the ~~conditions precedent set forth in~~ form attached as Annex I to Exhibit D to the Debt Commitment Letter)) and other customary documents as may reasonably be requested by Parent or the Financing Sources and (B) facilitate the pledge of, ~~to supplement or replace~~ grant of security interests in and obtain perfection of any liens on collateral in connection with the Debt ~~Financing (“Alternative Debt~~ Financing~~”). True~~; provided, ~~correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each~~that, ~~a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely~~ except in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redactedcustomary authorization letters as contemplated by Section 6.18(e)(iii), ~~will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained,~~ (iI) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” no liability shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under imposed on the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its ~~Affiliates’ obtaining funds~~ Subsidiaries or any of their respective officers or employees involved prior to ~~consummate~~ the ~~Merger~~ Closing Date and (II) the ~~transactions contemplated~~ effectiveness thereof shall be conditioned upon, or become operative as of or after, the occurrence of the Closing; (vii) at the reasonable request of Parent, and subject to the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), using commercially reasonable efforts to (A) file a Form 8-K with the SEC and (B) post on Debtdomain, IntraLinks, SyndTrak Online or similar electronic means, disclosing information identified by ~~this Agreement.~~Parent relating to the Company for purposes of permitting such information to be included in any bank information memoranda or other customary marketing materials to be provided to potential Financing Sources who do not wish to receive material nonpublic information with respect to any of the C

Appears in 1 contract

Sources: Merger Agreement (Covetrus, Inc.)

Financing. (a) ~~Subject to the terms and conditions of this Agreement, Parent~~ Merger Co shall use its reasonable best efforts to ~~take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to~~ arrange and ~~obtain~~ consummate all of the ~~Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions)~~ Commitments, including using its reasonable best efforts to ~~seek~~ (i) negotiate definitive agreements with respect thereto on terms and conditions contained therein and (ii) to ~~enforce~~ satisfy all conditions in such definitive agreements that are within its ~~rights~~ control. In the event all or any portion of the equity or debt financing under the ~~Debt Commitment Letter~~ Commitments becomes unavailable on the terms and conditions contemplated in the Commitments, including as a result of any Lender MAC (as defined below), Merger Co shall use its reasonable best efforts to arrange to obtain any such financing from alternative sources on terms not materially less favorable in the aggregate to Merger Co (as determined in the reasonable good faith judgment of Merger Co) as promptly as practicable following the occurrence of such event (the "Alternative Financing"). Merger Co shall give the Company prompt notice of a any material breach ~~thereof~~ by any party of any Commitments or any termination of any Commitments. Merger Co shall keep the ~~financing provider(s) thereunder. Parent~~ Company reasonably informed of the status of its efforts to arrange the Commitments and shall ~~not, without~~ promptly notify the ~~Company’s prior written consent,~~ Company orally and in writing of any material modifications to the Commitments and shall not permit any ~~amendment, supplement, replacement~~ material amendment or modification to be made to, or any waiver of any material provision or remedy under, any Commitment without first consulting with the ~~Debt Commitment Letter if such~~ Company and no amendment, ~~supplement~~modification, ~~replacement, modification~~ or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that which would ~~reasonably~~ be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements inconsistent with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement. (b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the ~~Debt Commitment Letter, to consummate the Debt Financing at~~ DOE Request Letter shall be made or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, given without the prior written consent of the Company. For purposes of this Agreement, ~~take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation~~ the term "Marketing Period" shall mean the first period of ~~all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent~~ twenty consecutive Business Days after the date hereof ~~and prior to~~ throughout which (A) Merger Co shall have the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries Required Information pursuant to Section ~~6.14 shall no longer be in effect. Further~~6.08(b), ~~Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long~~ which Required Information is and remains Compliant (as ~~the aggregate amount of the Debt Financing, together with other cash~~ defined below) and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (~~or more favorable to the Company than~~B) the conditions ~~precedent~~ set forth in ~~the Debt Commitment Letter~~Sections 7.01(c) and (d) and 7.02 (other than 7.02(c) and (h)) shall be and remain satisfied (for this purpose, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case as of the ~~fee letter~~date of the commencement of the Marketing Period) and at the end of which all conditions set forth in Section 7.01 and 7.02 shall be satisfied, ~~with only~~ provided that the ~~fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect~~ Marketing Period shall end on any earlier date which is the ~~enforceability, availability or conditionality of, or~~ third Business Day following the ~~aggregate amount of proceeds available under,~~ date the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the ~~Debt~~ Commitment ~~Letter as modified pursuant~~ Letters is consummated. "Compliant" shall mean, with respect to ~~clause (ii) below, (ii)~~ any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.Required

Appears in 1 contract

Sources: Merger Agreement (Education Management Corporation)

Appears in 1 contract

Sources: Merger Agreement (True Religion Apparel Inc)

Financing. (a) ~~Subject to the terms and conditions of this Agreement,~~ Parent shall use its, and shall cause its controlled Affiliates to use their, reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable ~~or proper~~ to ~~arrange~~ consummate and obtain the ~~Debt~~ Financing on the terms and ~~conditions described in the Debt Commitment Letter pursuant~~ subject only to the ~~terms thereof~~ conditions (including ~~any~~ the market “~~market~~ flex” provisions) set forth in the Commitment Papers contemporaneously with the Closing, including by using its reasonable best efforts to ~~seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s~~(i) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement. (b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the ~~Debt~~ Commitment ~~Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)~~Papers, (Bii) to negotiate and enter into definitive agreements with respect to the ~~Debt Commitment Letter~~ Financing (the “~~Debt Financing~~ Definitive Agreements”) on consistent with the terms and conditions ~~that are not materially less favorable to Parent than those~~ contained in the ~~Debt~~ Commitment ~~Letter,~~ Papers and (Ciii) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the ~~Closing, (D) to~~ Closing Date all conditions in the Commitment Papers and the Definitive Agreements and comply with its obligations ~~under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time~~thereunder. In the event that all conditions ~~precedent expressly set forth~~ contained in the ~~Debt~~ Commitment ~~Letter~~ Papers or the Definitive Agreements (other than the consummation of the Merger and other than those that by their nature are to be satisfied at the Closing) have been ~~or, upon funding of the Debt Financing will be, satisfied~~satisfied or waived, Parent ~~and Sub~~ shall use ~~their~~ its reasonable best efforts to in all material respects enforce ~~their~~ its rights ~~under~~under the Commitment Papers, ~~and~~ including using reasonable best efforts to cause the ~~Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing~~ Lenders to comply with their respective obligations ~~under the Debt Commitment Letter and definitive financing agreements and~~ thereunder, including to fund ~~on or before~~ the ~~Effective Time the Debt~~ Financing. Parent shall not, without the prior written consent of the Company, permit any termination of or amendment, supplement or modification to be made to, or grant any waiver of any provision under, the Commitment Papers if such termination, amendment, supplement, modification or waiver would (A) reduce the aggregate amount of the Financing to an amount that, when combined with cash of the Parent, would not be sufficient to consummate the Refinancing, (B) impose new or additional conditions precedent to the availability of the Financing or otherwise expand, amend or modify any of the conditions precedent to the Financing in a manner that would reasonably be expected to prevent or materially impede or delay the funding of the Financing, (C) adversely impact the ability of Parent to enforce its rights against the other parties to the Commitment Papers or (D) would otherwise reasonably be expected to prevent or materially impede or delay the funding of the Financing. Parent shall promptly deliver to the Company true and complete copies of any amendment, modification, supplement, consent or waiver to or under any Commitment Papers promptly upon execution thereof. (b) Parent shall keep the Company informed on a ~~current~~ reasonably prompt basis and in reasonable detail of the status of its efforts to arrange the ~~Debt~~ Financing~~, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. (c)~~ . Without limiting the generality of the foregoing, Parent ~~agrees to notify~~ shall give the Company ~~promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date~~ prompt written notice of (i) any actual or threatened breach, default, termination, cancellation or repudiation by any party to the ~~Debt~~ Commitment ~~Letter is terminated for~~ Papers and the receipt of any ~~reason~~written notice or other written communication from any Financing Source with respect to any breach, default, termination, cancellation or repudiation by any party to the Commitment Papers, or (ii) ~~Parent becomes aware~~ the occurrence of ~~any breach~~ an event or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would development that could reasonably be expected to adversely affect the ~~availability~~ ability of ~~the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses~~ Parent to ~~provide,~~ obtain all or any portion of the ~~Debt~~ Financing ~~contemplated by the Debt Commitment Letter~~ on the ~~terms set forth therein~~Closing Date to the extent necessary to fund the Refinancing. As soon as reasonably practicable after the Company delivers to Parent a written request, Parent shall ~~promptly~~ provide any information reasonably requested by the Company relating to any ~~circumstances~~ circumstance referred to in the immediately preceding sentence. If the Financing becomes unavailable on the terms and conditions (including any applicable market “flex” provisions) contemplated by the Commitment Papers (other than solely as a result of Company’s material breach of any covenant in this Section ~~6.13(c~~5.20). , Parent shall ~~not~~(i) use its reasonable best efforts to arrange and obtain, ~~nor shall it permit any~~ in replacement thereof alternative financing (the “Alternative Financing”) in an amount, when combined with cash on hand of ~~its Affiliates to~~Parent, ~~without~~ sufficient to consummate the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof Refinancing with terms and ~~prior to the Closing from consummated offerings or other incurrences of debt~~ conditions (including ~~notes~~market “flex” provisions) by not less favorable to Parent ~~for all~~ (or ~~any portion of~~ its Affiliates) than the ~~Debt Financing by reducing commitments under~~ terms and conditions set forth in the ~~Debt~~ Commitment ~~Letter; provided that~~ Papers and (vii) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly ~~notifies~~ notify the Company of such ~~substitution~~ unavailability and ~~reduction and (z) true~~the reason therefor. Upon any amendment, ~~correct and complete copies of each material amendment~~ supplement, modification, waiver or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations replacement of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full Papers in accordance with the ~~Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).~~ terms hereof (~~f) Notwithstanding anything to~~ including upon the ~~contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s~~ execution of any commitment letter or ~~any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.~~fee

Appears in 1 contract

Sources: Merger Agreement (Engility Holdings, Inc.)

Financing. (a) ~~Subject to the terms and conditions of this Agreement,~~ Parent shall use ~~its~~ reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable ~~or proper~~ to ~~arrange and~~ obtain the ~~Debt~~ Financing on the terms and subject only to the conditions described in the Commitment Letters as promptly as possible but in any event prior to the date on which the Merger is required to be consummated pursuant to the terms hereof, including (i) maintaining in effect the Commitment Letters until the Closing or earlier funding of the Financing contemplated thereby, (ii) negotiating and entering into definitive agreements with respect to the Debt Financing (the “Definitive Agreements”) consistent with the terms and conditions contained in the Debt Commitment Letter ~~pursuant~~ or on other terms in the aggregate not materially less favorable to Parent, and without any Prohibited Modification, (iii) satisfying on a timely basis all conditions that are applicable to Parent obtaining the ~~terms thereof~~ Financing in the Commitment Letters and the Definitive Agreements and comply with their obligations thereunder, in each case, that are within Parent’s control and (~~including any “market flex” provisions~~iv) ~~including~~ by using ~~its~~ reasonable best efforts ~~to seek~~ to enforce its rights under the Debt Commitment ~~Letter in the event of a breach thereof by the financing provider(s~~Letter. (b) ~~thereunder.~~ Parent shall not, without the ~~Company’s~~ prior written ~~consent~~consent of the Company: (i) permit, ~~permit~~ consent to or agree to any amendment, ~~supplement~~replacement, ~~replacement~~ supplement or modification ~~to be made~~ to, or any waiver of of, any provision or remedy under, the ~~Debt~~ Commitment ~~Letter~~ Letters if such amendment, replacement, supplement, ~~replacement~~modification, ~~modification~~ waiver or ~~waiver~~ remedy (A) adds new (or adversely modifies any existing) conditions to the consummation of all or any portion of the Financing, (B) reduces the aggregate amount of the ~~cash proceeds from~~ Equity Financing or reduces the Debt Financing or unless, in such case, there is a corresponding increase in any equity commitment under the Equity Commitment Letter, (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (yC) adversely ~~affect~~ affects the ability of Parent to enforce its rights against other parties to the ~~Debt~~ Commitment ~~Letter~~ Letters as so amended, replaced, supplemented or otherwise modified, relative to the ~~definitive agreements~~ ability of Parent to enforce its rights against the other parties to the Commitment Letters as in effect on the date of this Agreement or (D) would otherwise reasonably be expected to prevent, impede or materially delay the consummation of the Merger and the other transactions contemplated by this Agreement (the effects described in clauses (A) through (D), collectively, the “Prohibited Modifications”) or (ii) terminate or cause the termination of the Commitment Letters. Notwithstanding the foregoing, any amendment, supplement, amendment and restatement, or modification to add any additional agents or other financial institutions thereto as provided for therein shall be permitted and shall not require written consent of the Company or any other Person so long as such additional agents or other financial institutions are financial institutions whose creditworthiness, in Parent’s sole determination, is commensurate with ~~respect thereto~~ the creditworthiness of the Commitment Parties (~~provided, that Parent may amend~~ as defined in the Debt Commitment Letter as of the date hereof) that are party to the Debt Commitment Letter as of the date hereof. Other than with respect to amendments to the Debt Commitment Letter which solely add ~~or replace lenders~~arrangers and lenders and make related conforming modifications in respect thereof, ~~lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing).~~ Parent shall promptly deliver to the Company ~~true, complete and correct~~ copies of any ~~such~~ amendment, replacement, supplement, modification or ~~replacement~~waiver in respect of the Debt Commitment Letter. (bc) In the event that any portion of the Debt Financing becomes unavailable, regardless of the reason therefor, Parent ~~shall, and~~ shall ~~cause its Affiliates and Representatives to,~~ use its reasonable best efforts to (Ai) ~~to maintain in effect~~ notify the ~~Debt Commitment Letter~~ Company of the unavailability and (~~provided that~~ ii) arrange and obtain, as promptly as practicable following the ~~Debt Commitment Letter may be amended~~occurrence of such event, ~~supplemented, replaced, modified~~ alternative financing for any such unavailable portion from the same or ~~waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter~~ alternative sources (the “~~Debt Financing Agreements~~Alternative Financing”) in an amount sufficient, when taken together with the available portion of the Financing and cash on hand to fund the Financing Amounts on the Closing Date; provided that in no event shall Parent be required to (i) agree to Alternative Financing on terms and ~~conditions that are not~~ conditions, taken as a whole, materially less favorable to Parent than ~~those contained in~~ the ~~Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of),~~ terms and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment ~~Letter~~Letter in effect on the date hereof, ~~to consummate~~ (ii) seek equity financing (other than the ~~Debt~~ Equity Financing ~~at or prior~~ on the terms and subject to the ~~Closing, (D) to comply with its obligations under~~ conditions in the ~~Debt~~ Equity Commitment Letter) or (iii) pay or incur materially more (taken as a whole) fees, ~~and (E) to consummate the Debt Financing at~~ original issue discounts or ~~prior~~ pricing relative to the ~~Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding~~ pricing or fee terms of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and ~~definitive financing agreements and to fund~~ the Fee Letter, each as in effect on the date hereof. To the extent Parent obtains Alternative Financing or ~~before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail~~ amends, replaces, supplements, terminates, modifies or waives any of the ~~status of its efforts to arrange the Debt~~ Financing, ~~and, promptly following request by the Company, provide~~ in each case pursuant to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section ~~6.13(c). Parent shall not~~6.13, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement references to the “~~Debt~~ Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.”,

Appears in 1 contract

Sources: Merger Agreement (Premier, Inc.)

Financing. (a) ~~Subject~~ Notwithstanding anything contained in this Agreement to the ~~terms~~ contrary, the Parent expressly acknowledges and ~~conditions~~ agrees that the Parent's and Merger Sub's obligations hereunder are not conditioned in any manner upon the Parent or Merger Sub obtaining any financing. The Parent shall keep the Company apprised of all material developments or changes relating to the Financing Commitments and the Financing contemplated thereby. The failure, for any reason, of the Parent and the Merger Sub to have sufficient cash available on the Closing Date to pay the Merger Consideration in accordance with Article II hereof and/or the failure to so pay the Merger Consideration on the Closing Date shall constitute a willful and material breach of this Agreement. In addition, for the avoidance of doubt, the existence of any conditions contained in the Financing Commitments or the Financing (including the Equity Contribution Agreement) shall not constitute, nor be construed to constitute, a condition to the consummation of the transactions contemplated by this Agreement. (b) The Parent shall use its best reasonable ~~best~~ efforts to take, or cause to be taken, all ~~actions~~ actions, and to do, or cause to be done, all things necessary, proper or advisable ~~or proper~~ to ~~arrange~~ arrange, and ~~obtain~~ close upon concurrently with the Closing, the Debt Financing on the terms and conditions described in ~~the Debt Commitment Letter pursuant~~ or comparable to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing Commitment (provided that the Parent may terminate and replace or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of amend the Debt Financing ~~(or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt~~ Commitment ~~Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter~~ to add ~~or replace~~ lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Financing Commitment as of the date hereof or otherwise so long as ~~such action~~ the terms would not ~~reasonably be expected~~ adversely impact the ability of the Parent to consummate the transactions contemplated by this Agreement or otherwise prevent or materially delay or ~~prevent~~ materially impair the ~~Closing). Parent shall promptly deliver to~~ consummation of the ~~Company true, complete and correct copies of any such amendment, modification or replacement. (b~~transactions contemplated hereby) ~~Parent shall, and shall cause its Affiliates and Representatives to, use~~ including using its reasonable best efforts to (Ai) to maintain in effect the Debt ~~Commitment Letter~~ Financing Commitment, (~~provided that~~ ii) satisfy on a timely basis all conditions applicable to the Parent or Merger Sub to obtaining the Debt ~~Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)~~Financing, (Biii) ~~to negotiate and~~ enter into definitive agreements with respect ~~to the Debt Commitment Letter (the “Debt Financing Agreements”)~~ thereto on ~~the~~ terms and conditions ~~that are not materially less favorable to Parent than those contained in~~ contemplated by the Debt Financing Commitment ~~Letter, (C) to satisfy~~ or any replacement commitments or on ~~a timely basis (or obtain the waiver of), and in a manner~~ other terms that ~~will~~ would not ~~impede~~ adversely impact the ability of the ~~parties~~ Parent to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to transactions contemplated by this Agreement and (iv) consummate the Debt Financing at or prior to ~~the~~ Closing~~, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time~~. ~~In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding~~ If any portion of the Debt Financing ~~will be~~becomes unavailable on the terms and conditions contemplated in the Debt Financing Commitment, ~~satisfied,~~ the Parent ~~and Sub~~ shall use ~~their~~ its reasonable best efforts to ~~enforce their rights under, and cause~~ arrange to obtain alternative financing from alternative sources in an amount sufficient to consummate the ~~Financing Sources, lenders and~~ transaction contemplated by this Agreement as promptly as practicable following the ~~other persons providing or committing to provide~~ occurrence of such event. The Parent shall give the Company prompt notice of any material breach of the Debt Financing ~~to comply with their obligations under~~ Commitment of which the Parent becomes aware or any termination of the Debt ~~Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing~~Financing Commitment. The Parent shall keep the Company informed on a reasonably current basis ~~and~~ in reasonable detail of the status of ~~its~~ the efforts to arrange the Debt ~~Financing, and, promptly following request by the Company,~~ Financing and provide ~~to the Company~~ copies of all ~~executed~~ documents related to the Debt Financing ~~Agreements~~(other than any ancillary documents subject to confidentiality agreements) to the Company. (c) ~~Without limiting the foregoing~~The Parent shall use its best reasonable efforts to take, ~~Parent agrees~~ or cause to ~~notify the Company promptly~~be taken, all actions, and ~~in any event within two (2) Business Days, if at any time prior~~ to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not providedo, or ~~it refuses~~ cause to ~~provide~~be done, all things necessary, proper or ~~any portion of~~ advisable to arrange, and close upon concurrently with the ~~Debt~~ Closing, the Equity Financing ~~contemplated by the Debt Commitment Letter~~ on the terms ~~set forth therein.~~ and conditions described in or comparable to the Equity Contribution Agreement (provided that the Parent ~~shall promptly provide any information reasonably requested by~~ may, subject to the ~~Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent~~ terms of the ~~Company~~Equity Contribution Agreement, ~~take any action~~ terminate and replace or ~~enter into any transaction that would reasonably be expected~~ amend the Equity Contribution Agreement to ~~materially impair~~add lenders, ~~delay~~ lead arrangers, bookrunners, syndication agents, or ~~prevent consummation~~ similar entities who had not executed the Equity Contribution Agreement. As of ~~all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after~~ the date hereof ~~and prior to~~ or otherwise so long as the ~~Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion~~ terms would not adversely impact the ability of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available Parent to ~~Parent, is sufficient to pay all amounts required to be paid in connection with~~ consummate the transactions contemplated by this Agreement or otherwise prevent or materially delay or materially impair the consummation of the transactions contemplated hereby) including using its reasonable best efforts to (i) maintain in effect the Equity Contribution Agreement, (xii) satisfy on a timely basis all conditions applicable to the ~~proceeds of such debt offerings~~ Parent or ~~other incurrences have been received by Parent in cash~~Merger Sub to obtaining the Equity Financing, (yiii) ~~Parent promptly notifies~~ enter into definitive agreements with respect thereto on terms and conditions contemplated by the ~~Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment~~ Equity Contribution Agreement or ~~modification to~~ any replacement commitments or on other terms that would not adversely impact the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations ability of the ~~Company and its Subsidiaries pursuant~~ Parent to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with consummate the transactions contemplated by this Agreement and ~~all~~ (iv) consummate the Equity Financing at or prior to Closing. If any portion of the Equity Financing becomes unavailable on the terms and conditions ~~precedent~~ contemplated in the Equity Contribution Agreement, the Parent shall use its reasonable best efforts to ~~funding~~ arrange to obtain alternative financing from alternative sources in an amount sufficient to consummate the transaction contemplated by this Agreement as promptly as practicable following the occurrence of such ~~financing are,~~ event. The Parent shall give the Company prompt notice of any material breach of the Equity Contribution Agreement of which the Parent becomes aware or any termination of the Equity Contribution Agreement. The Parent shall keep the Company informed on a reasonably current basis in ~~respect~~ reasonable detail of ~~certainty~~ the status of ~~funding, equivalent~~ the efforts to ~~(or more favorable~~ arrange the Equity Financing and provide copies of all documents related to the ~~Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt~~ Equity Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided than any ancillary documents subject to confidentiality agreements) to the Company~~. In~~ . (d) The Company shall, and shall cause the ~~event any New Debt Commitment Letter is obtained~~Company Subsidiaries to, at the Parent's sole expense (and provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and the Subsidiaries) use its and their reasonable best efforts to provide such cooperation as may be reasonably requested by the Parent in connection with the Financings, including using reasonable best efforts to (i) ~~any reference~~ cause appropriate officers and employees to be available, on a customary basis and upon reasonable notice, to meet (including in ~~this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii~~Australia) ~~below~~with ratings agencies and prospective lenders and investors in presentations, meetings, and due diligence sessions, (ii) ~~any reference~~ assist with the preparation of disclosure documents in ~~this Agreement~~ connection therewith, (iii) provide financing sources with reasonable access to the ~~“Debt Commitment Letter” shall~~ properties, books and records of the Company and Company Subsidiaries, execute and deliver any customary pledge or security documents or other customary definitive financing documents and certificates as may be ~~deemed to include~~ reasonably requested by the ~~Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect~~Parent, and (~~iii~~iv) ~~any reference in this Agreement~~ direct its independent accountants and counsel to ~~“fee letter” shall be deemed to include any fee letter relating~~ provide customary and reasonable assistance to the ~~Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect~~Parent. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.

Appears in 1 contract

Sources: Merger Agreement (Duquesne Light Holdings Inc)

Financing. (a) ~~Subject to the terms~~ Each of Parent and ~~conditions of this Agreement, Parent~~ Merger Sub shall use its reasonable best efforts to ~~take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and~~ obtain the ~~Debt~~ Financing on the terms and conditions described in the ~~Debt Commitment Letter pursuant~~ Financing Letters (or on terms no less favorable to Parent or Merger Sub (including with respect to the ~~terms thereof (including any “market flex” provisions~~conditionality thereof)) ~~including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent~~ and shall ~~not, without the Company’s prior written consent,~~ not permit any ~~amendment, supplement, replacement~~ amendment or modification to be made to, or any waiver of any material provision ~~under~~or remedy under the Financing Letters, ~~the Debt Commitment Letter~~ if such amendment, ~~supplement, replacement,~~ modification or waiver ~~(A)~~ reduces the aggregate amount of the ~~cash proceeds from the Debt~~ Financing or ~~(B) imposes new or additional~~ amends the conditions precedent to the ~~initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter~~ Financing in a manner that would reasonably be expected to ~~(x)~~ delay or prevent the Closing Date or make the funding ~~in full~~ of the ~~Debt~~ Financing ~~(or satisfaction of the conditions~~ less likely to ~~the Debt Financing) on the Closing Date~~occur; provided, ~~or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided~~however, that Parent and Merger Sub may replace and amend the Debt Commitment Letter to add ~~or replace~~ lenders, lead arrangers, bookrunners, syndication agents or similar entities ~~so long~~ who had not executed the Debt Commitment Letter as ~~such action would not reasonably be expected to delay or prevent~~ of the ~~Closing)~~date hereof. Each of Parent and Merger Sub shall ~~promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement. (b) Parent shall, and shall cause its Affiliates and Representatives to,~~ use its reasonable best efforts (Ai) to maintain in effect the ~~Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B)~~ Financing Letters and to negotiate ~~and enter into~~ definitive agreements with respect to the Debt Commitment Letter ~~(the “Debt Financing Agreements”)~~ on the terms and conditions ~~that are not materially less favorable to Parent than those~~ contained in the Debt Commitment Letter (or on terms no less favorable to Parent or Merger Sub than the terms and conditions in the Debt Commitment Letter), (Cii) to satisfy on a timely basis ~~(or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger,~~ all conditions applicable to ~~receipt of the full amount of the Debt Financing at the Closing set forth therein~~ it in such definitive agreements that are within its ~~control or subject to its influence and~~control, (iii) upon satisfaction of ~~the conditions set forth in the Debt Commitment Letter~~such conditions, to consummate the ~~Debt~~ Financing at or prior to the Closing, (Div) to comply with its obligations under the ~~Debt Commitment Letter,~~ Financing Letters and (Ev) to ~~consummate the Debt Financing at or prior to the Effective Time. In the event that~~ enforce all ~~conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding~~ of ~~the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their~~ its rights ~~under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations~~ under the Debt Commitment Letter and the definitive ~~financing~~ agreements ~~and to fund on or before the Effective Time the Debt Financing~~related thereto. Parent shall keep the Company informed on a reasonably current basis and in reasonable detail of the status of its efforts to arrange the ~~Debt Financing, and, promptly following request by~~ Financing and provide to the Company, ~~provide~~ upon its request, copies of the definitive documents related to the ~~Company copies of~~ Financing. In the event that all ~~executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and~~ conditions in ~~any event within two (2) Business Days, if at any time prior to the Closing Date (i)~~ the Debt Commitment Letter ~~is terminated for any reason~~have been satisfied or, ~~(ii)~~ upon funding will be satisfied, Parent ~~becomes aware of any breach or default (A) by any Financing Source party~~ and Merger Sub shall use their reasonable best efforts to cause the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of Persons providing the Debt Financing or to fund on the Closing Date the Debt Financing required to consummate the Merger and the other transactions contemplated hereby (~~iii~~including by taking enforcement action to cause the Persons providing the Debt Financing to fund such Debt Financing). (b) ~~a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or~~ If any portion of the Debt Financing ~~contemplated by the Debt Commitment Letter~~ becomes unavailable on the terms ~~set forth therein. Parent shall promptly provide any information reasonably requested~~ and conditions contemplated by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (wi) Parent and Merger Sub shall immediately notify the ~~aggregate~~ Company and (ii) Parent and Merger Sub shall use their reasonable best efforts to arrange and obtain alternative financing from alternative sources in an amount sufficient to consummate the transactions contemplated hereby with terms and conditions no less favorable from the standpoint of Parent and Merger Sub than the ~~Debt Financing committed under~~ terms and conditions set forth in the Debt Commitment Letter as promptly as practicable following the occurrence of such ~~reduction~~event. Parent shall give the Company prompt notice if any condition to the Financing Letters is not likely to be satisfied, ~~together with other cash~~ in each case, of which Parent or Merger Sub becomes aware or any termination of the Financing Letters. Parent and ~~cash equivalents available to Parent~~Merger Sub acknowledge and agree that the obtaining of the Financing, or any alternative financing, is ~~sufficient~~ not a condition to ~~pay all amounts required~~ Closing. For purposes of this Section 5.6, references to "Financing" shall include the financing contemplated by the Financing Letters as permitted to be ~~paid~~ amended, modified or replaced by this Section 5.6 and references to "Debt Commitment Letter" shall include such documents as permitted to be amended, modified or replaced by this Section 5.6. (c) Prior to the Closing Date, the Company and its Subsidiaries shall, and the Company shall use its reasonable best efforts to cause its and their Representatives to, provide to Parent and Merger Sub all cooperation reasonably requested by Parent and that is customary in connection with the arrangement of the Financing and the transactions contemplated ~~by this Agreement~~hereby; provided, ~~(x)~~ however, that no such requested cooperation may unreasonably interfere with the ~~proceeds~~ ongoing operations of ~~such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies~~ the Company and its Subsidiaries. Such cooperation shall include (i) furnishing Parent, Merger Sub and their Financing sources as promptly as practicable with financial and other pertinent information regarding the Company and its Subsidiaries as may be reasonably requested in writing by Parent, including all financial statements and financial and other data of ~~such substitution~~ the type required by Regulation S-X (other than Item 3-10 of Regulation S-X) and ~~reduction~~ Regulation S-K under the Securities Act for registered offerings of debt securities, and ~~(z) true~~of the type and form customarily included in offering documents used in private placements under Rule 144A of the Securities Act, ~~correct~~ to consummate the Financings at the time the Financings are to be consummated, including all information and ~~complete copies~~ data necessary to satisfy the conditions set forth in paragraphs 4 and 5 of ~~each material amendment or modification to~~ Exhibit C of the Debt Commitment Letter ~~relating thereto will~~ (information required to be ~~promptly provided~~ delivered pursuant to ~~the Company. If commitments under the Debt Commitment Letter have been reduced~~ this clause (i) being referred to ~~zero~~ as "Required Financial Information), (ii) participating in a reasonable number of meetings, presentations, road shows, due diligence sessions, drafting sessions and sessions with prospective lenders, investors and rating agencies in connection with the ~~preceding sentence~~Financing, (iii) assisting with the ~~obligations~~ preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses and similar documents required in connection with the Financing, (iv) using reasonable best efforts to obtain accountant's comfort letters and legal opinions as reasonably requested by Parent, (v) taking all corporate actions, subject to the occurrence of the Effective Time, required to permit the consummation of the Financing and to permit the proceeds thereof to be made available to the Surviving Corporation immediately after the Effective Time, (vi) providing unaudited consolidated monthly financial statements of the Company (excluding footnotes) consisting of a balance sheet, income statement and statement of cash flows to the extent the Company customarily prepares such financial statements and (vii) executing and delivering any pledge and security documents, other definitive financing documents or other certificates or documents as may be requested by Parent (including a certificate of the chief financial officer of the Company with respect to solvency matters and consents of accountants for use of their reports in any materials relating to the Debt Financing) and otherwise reasonably facilitating the pledging of collateral; provided, however, that 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 pay any commitment or other similar fee or incur any other liability in connection with the Financing prior to the Effective Time. (d) The Company hereby consents to the use of its and its Subsidiaries' logos in connection with the Financing; provided, however, that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or any of its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys' fees) incurred by the Company or any of its Subsidiaries in connection with the cooperation of the Company and its Subsidiaries ~~pursuant to~~ contemplated by this Section ~~6.14~~ 5.6 and shall ~~no longer be in effect. Further~~indemnify and hold harmless the Company, ~~Parent shall have the right to substitute commitments in respect~~ its Subsidiaries and their respective Representatives from and against any and all losses, damages, claims, costs or expenses suffered or incurred by any of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid them in connection with the ~~transactions contemplated by this Agreement and all conditions precedent to funding~~ arrangement of ~~such financing are, in respect of certainty of funding, equivalent to (or more favorable to~~ the ~~Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt~~ Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter than to the extent ~~then~~ such losses arise from the willful misconduct of the Company, any of its Subsidiaries or any of its Representatives) and any information used in ~~effect~~connection therewith, ~~and (iii)~~ except with respect to any ~~reference in this Agreement to “fee letter” shall be deemed to include~~ information provided by the Company or any ~~fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect~~of its Subsidiaries. (e) On In no event shall Parent, Merger Sub or the ~~Closing Date, Parent shall provide all funds required~~ Equity Provider (i) retain any financial advisor on an exclusive basis other than advisors to ~~effect~~ which the ~~repayment~~ board of ~~all indebtedness under~~ directors of the Company ~~Credit Agreement~~ consents (which consent shall not be unreasonably withheld, delayed or conditioned) or (ii) enter into any exclusive, lock-up or similar agreement, arrangement or understanding, with any bank or investment bank or other potential provider of debt or equity financing that could reasonably be expected to prevent such provider from providing or seeking to provide such financing to any third party in ~~full~~ connection with a transaction relating to the Company or its Subsidiaries, in ~~accordance~~ connection with the ~~Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to~~ Merger or the ~~contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the~~ other transactions contemplated ~~by this Agreement~~hereby.

Appears in 1 contract

Sources: Merger Agreement (Internet Brands, Inc.)

Financing. (a) ~~Subject~~ Parent shall obtain the Equity Financing contemplated by the Equity Commitment Letters upon satisfaction or waiver of the conditions to the ~~terms and conditions~~ Closing set forth in Section 9.1 [(Conditions to the Obligations of ~~this Agreement~~the Company, Parent ~~shall use its reasonable best efforts to take, or cause to be taken, all actions~~ and ~~to do, or cause to be done, all things necessary, advisable or proper to arrange~~ Merger Sub)] and ~~obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant~~ Section 9.2 [(Conditions to the ~~terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under~~ Obligations of the ~~Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder~~Company)]. Parent shall ~~not, without the Company’s prior written consent,~~ not permit any ~~amendment, supplement, replacement~~ amendment or modification to be made to, or any waiver of any provision or remedy under, the ~~Debt~~ Equity Commitment ~~Letter if such amendment, supplement, replacement, modification or waiver (A) reduces~~ Letters without the ~~aggregate amount~~ prior written consent of the ~~cash proceeds from~~ Company. Parent acknowledges and agrees that its obligations to consummate the ~~Debt Financing~~ transactions contemplated by this Agreement are not conditioned or ~~(B) imposes new or additional conditions to the initial funding~~ in any way contingent upon or otherwise ~~expands any of the conditions to the~~ subject to, receipt of the ~~Debt Financing~~Equity Financing or other financing or the availability, grant, provision or ~~otherwise expands, amends~~ extension of any Equity Financing or ~~modifies any~~ other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability financing of Parent ~~to enforce its rights against other parties to the Debt Commitment Letter~~ or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement. (b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its ~~efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing,~~ Affiliates. Neither Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall notnor Merger Sub shall, nor shall it they permit any of ~~its~~ their Affiliates to, without the prior written consent of the Company, take or fail to take any action or enter into any transaction that ~~would~~ could reasonably be expected to materially impair, delay or prevent the consummation of the Equity Financing contemplated by the Equity Commitment Letters. (b) Prior to the earlier of the Closing or termination of this Agreement in accordance with Section 10.1 [(Termination)], the Company agrees to use commercially reasonable efforts to provide such cooperation as may be reasonably requested by Parent, at Parent’s expense and solely as an accommodation to Parent, in connection with the arrangement of any financing to be consummated with respect to the transactions contemplated by this Agreement; provided that (i) such requested cooperation does not (A) unreasonable interfere with the ongoing operations of the Company, the MIC Hawaii Companies and their respective Affiliates, (B) cause any representation, warranty covenant or agreement in this Agreement to be breached; or (C) cause any closing condition set forth in Article VIII to fail to be satisfied or otherwise causes the breach of this Agreement or any Contract to which MIC or any of the MIC Subsidiaries or the Company or any of the MIC Hawaii Companies is a party; and, provided, further, that the effect of any such breach shall be excluded when determining if the conditions set forth in Section 9.1 [(Conditions to the Obligations of the Company, Parent and Merger Sub)] and Section 9.2 [(Conditions to the Obligations of the Company)] are satisfied, (ii) this Section 8.17(b) does not expand any of Parent’s rights under Section 8.1 [(Access to Information Concerning Properties and Records)] and (iii) none of the Company, the MIC Hawaii Companies and their respective Affiliates shall have any liability or obligation under any agreement or document related to such financing or otherwise be required to incur any liability or obligation in connection with such financing. (c) For the avoidance of doubt, none of MIC, the MIC Subsidiaries, the Company, any MIC Hawaii Companies or their respective Affiliates shall be required to provide, and Parent shall be solely responsible for, (1) the preparation of pro forma financial information, including pro forma cost savings, synergies, capitalization or other pro forma adjustments desired to be incorporated into any pro forma financial information or any financial statements or financial information other than the consolidated financial statements contained in the MIC Reports or Company Reports, (2) any description of all or any ~~portion~~ component of the ~~Debt Financing~~financing, including any such description to be included in any liquidity or capital resources disclosure or any “description of notes”, (3) projections, risk factors or other forward-looking statements relating to all or any component of any financing, (4) subsidiary financial statements or any other information of the type required by Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X promulgated under the Exchange Act or (5) Compensation Disclosure and Analysis required by Item 402(b) of Regulation S-K promulgated under the Exchange Act. The MIC Board, the Company Board and the directors, managers and general partners of the MIC Subsidiaries and the MIC Hawaii Companies and any other Affiliates of the Company or MIC shall not be required to adopt resolutions approving the agreements, documents and instruments pursuant to which any financing is obtained. None of the Company, any MIC Hawaii Companies or their respective Affiliates shall be required to execute prior to the Closing any definitive financing documents, including any credit or other agreements, pledge or security documents, or other certificates, legal opinions or documents in connection with the financing, and in the event any such Person does agree to execute any such document, Parent agrees that the execution of any documents in connection with the financing shall be subject to the consummation of the transactions contemplated hereby at the Closing and such documents will not take effect until the Closing occurs and will not encumber the assets of the Company or any MIC Hawaii Company prior to the Closing. Except as expressly provided above, none of the Company, any MIC Hawaii Companies or their respective Affiliates shall be required to take any corporate, limited liability company or limited partnership actions prior to the Closing to permit the consummation of the financing. In no event shall the Company or MIC be in breach of this Agreement because of the failure to deliver any financial or other information or for the failure to obtain any comfort with respect to, or review of, any financial or other information by its accountants. (d) In no event shall MIC, any MIC Subsidiary, the Company or any MIC Hawaii Company be required to (i) pay any commitment or similar fee or incur any liability (including due to any act or omission by MIC, any MIC Subsidiary, the Company or any MIC Hawaii Company or any of their respective Representatives) or expense in connection with assisting Parent ~~shall have~~ in arranging the ~~right~~ financing or as a result of any information provided by MIC, any MIC Subsidiary, the Company or any MIC Hawaii Company or any of their respective Affiliates or their respective Representatives in connection therewith, (ii) take any action that would result in a violation of applicable Law or subject it to ~~substitute the net cash proceeds received by Parent after the date hereof and~~ actual or potential liability prior to the Closing ~~from consummated offerings~~ occurring, (iii) have any liability or any obligation under any definitive financing document or any related document or other ~~incurrences~~ agreement or document related to the financing prior to the Closing occurring, or (iv) disclose or provide any information the disclosure of ~~debt~~ which in the reasonable judgment of MIC or any of the MIC Subsidiaries (~~including notes~~or, following completion of the Reorganization, the Company or any of the MIC Hawaii Companies), is restricted by applicable Law or order, or is subject to attorney-client privilege. Notwithstanding anything to the contrary herein, any breach by MIC, any MIC Subsidiary, the Company or any MIC Hawaii Company of their obligations under this Section 8.17 shall not constitute a breach of this Agreement or a breach for purposes of Article IX or a breach of any condition precedent set forth in Article VIII. (e) by Parent shall be responsible for all or fees and expenses related to any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required financing to be ~~paid~~ consummated in connection with the transactions contemplated by this Agreement. Accordingly, ~~(x) the proceeds of such debt offerings or other incurrences have been received by~~ Parent ~~in cash, (y) Parent~~ shall promptly ~~notifies~~ reimburse MIC and the Company of for all reasonable and documented out-of-pocket costs incurred by MIC and the MIC Subsidiaries and the Company and the Company Subsidiaries in connection with such ~~substitution~~ cooperation. Parent shall indemnify and ~~reduction and (z) true~~hold harmless MIC, ~~correct and complete copies of each material amendment or modification to~~ the ~~Debt Commitment Letter relating thereto will be promptly provided to~~ MIC Subsidiaries, the Company~~. If commitments under~~ , the ~~Debt Commitment Letter have been reduced to zero~~ Company Subsidiaries and their respective Affiliates and Representatives from and against any and all Liabilities, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with the ~~preceding sentence, the obligations~~ arrangement of any financing or providing any of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid information utilized in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effecttherewith. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.

Appears in 1 contract

Sources: Merger Agreement (Macquarie Infrastructure Corp)

Financing. (a) ~~Subject to the terms and conditions of this Agreement, Parent~~ Purchaser shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable ~~or proper~~ to arrange ~~and obtain~~ the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent Letter, and shall ~~not,~~ not permit without the ~~Company’s~~ prior written ~~consent~~consent of the Seller, ~~permit~~ which consent shall not be unreasonably withheld or delayed, any ~~amendment, supplement, replacement~~ amendment or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, ~~supplement, replacement,~~ modification or waiver (Ai) reduces (or could have the effect of reducing) the aggregate amount of the ~~cash proceeds from~~ Debt Financing (including by increasing the amount of fees to be paid or original issue discount unless (A) the Debt Financing is increased by a corresponding amount and (B) after giving effect to any of the transactions referred to in clause (A) above, the representation and warranty set forth in Section 6.06 shall be true) or (Bii) imposes new or additional conditions ~~to the initial funding~~ or otherwise ~~expands~~ expands, amends or modifies any of the conditions to the ~~receipt of the~~ Debt ~~Financing,~~ Financing or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (xA) prevent or make less likely or materially delay ~~or prevent~~ the funding ~~in full~~ of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the date of the Closing ~~Date,~~ or (yB) adversely ~~affect~~ impact the ability of ~~Parent~~ Purchaser to enforce its rights against other parties to the Debt Commitment Letter or (provided that, subject to compliance with the ~~definitive agreements with respect thereto (provided~~other provisions of this Section 7.05, ~~that Parent~~ Purchaser may amend the Debt Commitment Letter to add ~~or replace~~ additional lenders, ~~lead~~ arrangers, ~~bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing~~bookrunners and agents). ~~Parent~~ Purchaser shall promptly deliver to ~~the Company true, complete and correct~~ Seller copies of any such amendment, modification or replacement. (b) ~~Parent shall, and~~ Purchaser shall ~~cause its Affiliates and Representatives to,~~ use its reasonable best efforts to (Ai) to maintain in full force and effect the Debt Commitment ~~Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)~~Letter, (Bii) to negotiate and enter into definitive agreements with respect ~~to the Debt Commitment Letter (the “Debt Financing Agreements”)~~ thereto on the terms and conditions ~~that are not materially~~ contemplated by the Debt Commitment Letter or on other terms no less favorable to ~~Parent than those contained in~~ Seller (including with respect to the conditionality thereof), (iii) comply with its obligations under the Debt Commitment ~~Letter~~Letter and the definitive agreements with respect thereto, and (Civ) to satisfy on a timely basis ~~(or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger,~~ all conditions to ~~receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth~~ funding in the Debt Commitment ~~Letter,~~ Letter and such definitive agreements thereto and to consummate the Debt Financing at or prior to the ~~Closing~~Closing Date, ~~(D) to comply with~~ including using its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts (including through litigation pursued in good faith) to ~~enforce their rights under, and~~ cause the ~~Financing Sources,~~ lenders and the other persons ~~providing or~~ committing to ~~provide~~ fund the Debt Financing to ~~comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to~~ fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to at the Closing ~~from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that~~ and (v) ~~such offering or other incurrence of debt does not result in a breach or default under~~to enforce its rights (including, ~~or violation of, the Debt Commitment Letter, (w) the aggregate amount of the~~ with respect to Debt Financing ~~committed under the Debt Commitment Letter following such reduction~~sources, ~~together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid~~ through litigation pursued in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.good

Appears in 1 contract

Sources: Stock Purchase Agreement (Catalent Pharma Solutions, Inc.)

Financing. (a) ~~Subject~~ On or prior to the ~~terms and conditions of this Agreement~~First Merger Effective Time, Parent shall use its reasonable best efforts to take, or cause to be taken, all ~~actions~~ actions, and use its reasonable best efforts to do, or cause to be done, all things necessary, proper or advisable to obtain, or ~~proper~~ cause its Subsidiaries, as applicable, to ~~arrange and obtain~~ obtain, funds sufficient to fund the Debt Financing on Amounts by the ~~terms~~ First Merger Effective Time. In furtherance and ~~conditions described~~ not in limitation of the foregoing, Parent undertakes not to agree to (i) any amendment without the consent of the Company (x) to the Debt Commitment Letter ~~pursuant to~~ that would reduce the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the ~~cash proceeds from~~ Debt Financing provided thereunder to an amount less than Parent would need, together with all other sources of funding available to them, to fund the Debt Financing Amounts by the First Merger Effective Time or (By) ~~imposes new or additional conditions~~ to ~~the initial funding or otherwise expands any of~~ the conditions to the ~~receipt~~ funding of the Debt ~~Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter~~ Financing thereunder in a manner that would reasonably be expected to prevent or materially impede or delay the consummation of the transactions contemplated hereby or (xii) ~~delay or prevent~~ the ~~funding in full~~ termination of the Debt ~~Financing (~~Commitment Letter to the extent doing so would reasonably be expected to prevent or ~~satisfaction~~ materially impede or delay the consummation of the ~~conditions to the Debt Financing) on the Closing Date~~transactions contemplated hereby, ~~or (y) adversely affect~~ including the ability of Parent to ~~enforce its rights against~~ timely pay all or a portion of the Cash Consideration and to timely pay other ~~parties to~~ amounts payable under or in connection with this Agreement. In the ~~Debt Commitment Letter~~ period between the date of this Agreement and the First Merger Effective Date, Parent shall (A) reasonably promptly upon request from the Company, provide the Company updates about the preparation of the financing of the Transactions and (B) promptly inform the Company after becoming aware of any circumstance or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action event which would ~~not~~ reasonably be expected to prevent or materially impede or delay Parent’s ability to obtain funds sufficient to fund the Debt Financing Amounts by the First Merger Effective Time. Without prejudice to Parent’s contractual responsibility to pay the Cash Consideration when due and to pay any other amounts due and payable under or ~~prevent~~ in connection with this Agreement, the ~~Closing). Parent shall promptly deliver~~ Company hereby acknowledges and agrees that, to the ~~Company true~~extent other financing (or financing commitments) is available to Parent to timely pay the Debt Financing Amounts, ~~complete and correct copies of any~~ Parent may finance the Debt Financing Amounts using such ~~amendment, modification~~ other financing (or ~~replacement~~financing commitments) or a portion thereof. (b) Until the earlier of the First Merger Effective Time and the termination of this Agreement pursuant to Article VIII, the Company shall (i) use reasonable best efforts to provide, (ii) cause its Subsidiaries to use reasonable best effort to provide and (iii) use reasonable best efforts to cause its and its Subsidiaries’ respective Representatives to use reasonable best efforts to provide, such cooperation, at Parent’s sole cost and expense, as may be reasonably requested by Parent ~~shall~~in connection with the Debt Financing or any other financing of Parent in connection with the Merger (collectively, the “Financing”). Without limiting the generality of the foregoing sentence, until the earlier of the First Merger Effective Time and the termination of this Agreement pursuant to Article VIII, the Company shall cause its ~~Affiliates~~ Subsidiaries and ~~Representatives to,~~ use its reasonable best efforts to cause its and their respective Representatives to: (i) use reasonable best efforts to, upon reasonable advance notice and at mutually agreeable times and locations, participate in a reasonable number of bank meetings, due diligence sessions, lender presentations, drafting sessions, road shows and similar presentations and sessions to and with the financing sources and rating agencies, as applicable, including direct contact between senior management and the other Representatives of the Company, on the one hand, and the financing sources and ratings agencies, as applicable, on the other hand, (ii) use reasonable best efforts to furnish Parent with such customary historical financial and other factual information (that is, in the case of financial statements, readily available to, and in the form customarily prepared by, the Company and its Subsidiaries) regarding the Company and its Subsidiaries as may be reasonably requested by Parent and is customarily provided in connection with financings of the type contemplated by any Financing or reasonably necessary for the completion of such Financing, (iii) use reasonable best efforts to provide to Parent and its financing sources at least three (3) Business Days prior to the Closing Date all documentation and other information required by Governmental Entities under applicable “know your customer” and anti-money laundering rules and regulations to the extent reasonably requested in writing by Parent at least ten (10) Business Days prior to the Closing, (iv) provide the historical financial statements of the Company and its Subsidiaries required by paragraph (iii) of Exhibit B of the Debt Commitment Letter, (v) provide customary authorization letters and management representation letters in connection with any Financing, (vi) use reasonable best efforts to facilitate the execution and delivery at the First Merger Effective Time of definitive and ancillary documents, if any, required in connection with or reasonably related to the Financing, and (vii) use reasonable best efforts to assist Parent in preparing customary offering memoranda, rating agencies presentations, lender presentations, prospectuses and other similar documents in connection with any Financing. Parent shall be permitted to disclose confidential information to any parties providing any Financing, rating agencies and prospective lenders during syndication of such Financing, subject to such parties providing commitments, rating agencies and prospective lenders entering into customary confidentiality undertakings for a syndication with respect to such information. The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the Financing so long as such logos are used solely in a manner that is not intended or reasonably likely to harm, disparage or otherwise adversely affect the Company or any of its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries. (c) Notwithstanding anything in this Agreement to the contrary, nothing in Section 5.19(b) or Section 5.20(a) through (d) shall require (i) the Company, its Subsidiaries or any of their respective Representatives to execute or enter into any certificate (including with respect to solvency), instrument, agreement or other document in connection with any Financing which will be effective prior to the First Merger Effective Time (excluding any customary authorization and management representation letters contemplated by Section 5.19(b)(v) (provided that such customary authorization letters (or the bank information memoranda in which such letters are included) shall include customary language that exculpates the Company, each of its Subsidiaries and its and their respective Representatives from any liability in connection with the unauthorized use by the recipients thereof of the information set forth in any such bank confidential information memoranda or similar memoranda or report distributed in connection therewith)), (ii) cooperation or other actions or efforts on the part of the Company, any of its Subsidiaries, or any of their respective Representatives, in connection with any Financing to the extent, in the Company’s reasonable judgement (and in the case of the following clauses (B) and (C), after consultation with its outside legal counsel), it would (A) interfere unreasonably with the business or operations of the Company or its Subsidiaries, (B) subject any director, manager, officer or employee of the Company or any Subsidiary thereof to ~~maintain~~ personal liability or (C) result in a failure of any condition to the obligations of the parties hereto to consummate the Transactions, (iii) the Company or any of its Subsidiaries or any of their respective Representatives to pay any commitment or other fee, incur or reimburse any costs or expenses or incur any other liability or give any indemnities in connection with any Financing that is not reimbursed by Parent, (iv) the board of directors or similar governing body of the Company or any of its Subsidiaries, prior to the First Merger Effective Time, to adopt resolutions, execute any consents or otherwise take any corporate or similar action which will be effective prior to the First Merger Effective Time, approving, or otherwise approve, the agreements, documents or instruments pursuant to which any Financing is made, (v) the Company and its Subsidiaries to provide any access or information if doing so would (in the case of the following clauses (A) and (B), in the Company’s reasonable judgement after consultation with its outside legal counsel) (A) reasonably be expected to violate any fiduciary duty, applicable Law or Company Material Contract to which the Company or such Subsidiary is party, (B) reasonably be expected to result in the loss of the ability to successfully assert attorney-client, work product or similar privileges or (C) violate any Company policies regarding access to such books, Contracts and records or jeopardize the health and safety of any employee, independent contract or other agent of the Company or any of its Subsidiaries; provided, that the Company and its Subsidiaries shall, in the case of clauses (A) through (C), use reasonable best efforts to make appropriate substitute arrangements under circumstances in which the foregoing restrictions do not apply and provide such information or access to the maximum extent possible without running afoul the foregoing restrictions, (vi) the Company or its Subsidiaries to deliver or cause the delivery of any legal opinions or reliance letters in connection with any Financing (excluding any customary authorization and management representation letters contemplated by Section 5.19(b)(v) (provided that such customary authorization letters (or the bank information memoranda in which such letters are included) shall include customary language that exculpates the Company, each of its Subsidiaries and its and their respective Representatives from any liability in connection with the unauthorized use by the recipients thereof of the information set forth in any such bank confidential information memoranda or similar memoranda or report distributed in connection therewith)) which will be effective prior to the First Merger Effective Time, (vii) cooperation that would violate, or result in the waiver of any benefit under, this Agreement, any other Company Material Contract (not entered in contemplation hereof) or any Law to which Company, any of its Subsidiaries, or any of their respective Representatives, is a party or subject or (viii) the Company or any of its Subsidiaries or any of their respective Representatives to prepare or provide (and Parent shall be solely responsible for) (A) pro forma financial information, including pro forma cost savings, synergies, capitalization or other pro forma adjustments in each case giving effect to the transactions desired to be incorporated into any pro forma financial information in connection with any Financing, (B) any description of all or any component of any Financing, or (C) projections or other forward-looking statements relating to all or any component of any Financing. Parent shall be responsible for all fees and expenses related to any Financing, including the compensation of any contractor or advisor of Parent or the Company directly related to actions taken pursuant to this Section 5.19. Accordingly, notwithstanding anything to the contrary herein, Parent shall promptly, upon written request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented compensation or other fees of any contractor or advisor) incurred in connection with the Financing incurred by the Company and its Subsidiaries and their respective Representatives in connection with the Financing, including the cooperation of the Company and the Subsidiaries thereof contemplated by this Section 5.19, and shall indemnify and hold harmless the Company and its Subsidiaries and their respective Representatives from and against any and all losses, claims, damages, liabilities, judgments, obligations, causes of action, payments, charges, fines, assessments and costs and expenses (including reasonable attorneys’ fees, legal and other expenses incurred in connection therewith) suffered or incurred by any of them in connection with this Section 5.19, the arrangement of the Financing or any information used in connection therewith, in each case, except to the extent suffered or incurred as a result of (i) the gross negligence, bad faith or willful misconduct by the Company or any of its Subsidiaries or, in each case, their respective Representatives, (ii) the material breach of this Agreement by the Company or the Company Representative or (iii) any material misstatement in, or omission from, information provided in writing hereunder by the Company or any of its Subsidiaries or their respective Representatives for use in connection herewith or with the Financing. (d) P▇▇▇▇▇, Merger Sub I and Merger Sub II each acknowledge and agree that obtaining Debt Financing is not a condition to the First Merger Effective Time. (e) Subject to Section 5.19(b), all non-public or other confidential information provided by the Company to Parent or its Affiliates pursuant to this Section 5.19(a) shall be kept confidential in accordance with the Confidentiality Agreement. The Company agrees that any financing source of Parent is to be treated as a “Representative” as defined in the Confidentiality Agreement. (f) Notwithstanding anything in this Agreement to the contrary, the Company’s breach of this Section 5.19 or Section 5.20 will not be asserted as the basis for (A) any conditions set forth in Article VI to consummate the Merger having not been satisfied or (B) the termination of this Agreement pursuant to Article VII, in each case, unless such breach is (x) a Willful and Material Breach that (y) causes the conditions in clause (iii) of Exhibit B of the Debt Commitment Letter (~~provided that the~~ or substantially similar conditions in any replacement to such Debt Commitment Letter ~~may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B~~described below) to ~~negotiate and enter into definitive agreements with respect~~ not be satisfied solely as they relate to the ~~Debt Commitment Letter~~ Company and is (z) the ~~“Debt Financing Agreements”) on the terms and conditions that are not materially less favorable~~ primary cause of Parent being unable to ~~Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or~~ obtain the ~~waiver of), and in a manner that will not impede the ability~~ proceeds of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate (I) the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the First Merger Effective Time ~~the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request~~ (such breach by the Company, ~~provide to the~~ a “Company ~~copies of all executed~~ Debt ~~Financing Agreements.~~ Breach”) or (cII) ~~Without limiting the foregoing, Parent agrees to notify the Company promptly, and in~~ any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party replacement to the Debt ~~Commitment Letter or~~ Financing that is required for any ~~Debt Financing Agreement or (B)~~ reason other than Parent’s breach of any ~~other party~~ obligations related to ~~the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of~~ the Debt Financing or ~~(iii) a counterparty indicates in writing or orally that it will not provide, or it refuses~~ Parent’s failure to ~~provide, all or~~ satisfy any ~~portion~~ of the conditions related thereto (it being understood that if, and only if, the Company’s Debt ~~Financing contemplated by~~ Breach caused Parent’s breach or Parent’s failure to satisfy any of the ~~Debt Commitment Letter on the terms set forth therein.~~ conditions related thereto, Parent shall ~~promptly provide~~ be deemed not to be in breach and shall be deemed not to have failed to satisfy any ~~information reasonably requested by~~ of the ~~Company relating to any circumstances referred to~~ conditions related thereto for the purposes of clause (II) in this Section ~~6.13(c~~5.19(f). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.

Appears in 1 contract

Sources: Merger Agreement (Diamondback Energy, Inc.)

Financing. (a) ~~Subject~~ Parent and Merger Sub each shall use its commercially reasonable best efforts to obtain the Equity Financing on the terms and conditions set forth in the Equity Financing Commitment. Neither Parent nor Merger Sub shall amend, alter or waive, or agree to amend, alter or waive, any term of the Equity Financing Commitment, without the prior written consent of the Company. Parent and Merger Sub shall use their commercially reasonable best efforts to maintain in effect the Equity Financing Commitment until the earlier of the termination of this ~~Agreement~~Agreement and the consummation of the transactions contemplated by this Agreement and to enforce their rights under the Equity Financing Commitment. Each of Parent and Merger Sub agrees to notify the Company promptly, and in any event within one (1) Business Day, if at any time prior to the Closing Date (i) the Equity Financing Commitment expires or is terminated for any reason (or if any Person attempts or purports to terminate the Equity Financing Commitment, whether or not such attempted or purported termination is valid), or (ii) the investor party to the Equity Financing Commitment refuses to provide the full Equity Financing on the terms set forth in the Equity Financing Commitment. Except as set forth in Section 4.13(b), in no event shall Parent and Merger Sub be required to seek or obtain equity financing other than the Equity Financing and in no event shall the Guarantors be required to provide equity financing in an amount in excess of the amount set forth in the Equity Financing Commitment. (b) Parent shall use its commercially reasonable best efforts to obtain the Debt Financing on the terms and conditions (including flex provisions) set forth in the Debt Financing Commitment. Parent shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, the Debt Financing Commitment, without the prior written consent of the Company, if such amendment, modification or waiver would (i) reduce the aggregate amount of the Debt Financing (including by changing the amount of fees to be paid or original issue discount of the Debt Financing), unless the Equity Financing is increased by a corresponding amount on terms no less favorable in any material respect (including as to conditionality), or (ii) impose new or additional conditions, or otherwise amend, modify or expand any conditions, to the receipt of the Debt Financing in a manner that could reasonably be expected to prevent, delay or impede the Closing or the funding of the Debt Financing. Notwithstanding the foregoing, Parent and Merger Sub may, to the extent expressly permitted under the Debt Financing Commitments, (A) amend or modify the Debt Financing Commitment to add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Debt Financing Commitment as of the date hereof, if the addition of such additional parties, individually or in the aggregate, would not prevent, materially delay or materially impede the availability of the Debt Financing or the consummation of the transactions contemplated by this Agreement, and (B) enter into additional financing commitment letters with respect to the debt financing of the transactions contemplated by this Agreement; provided, that such commitment letters (x) do not contain any new or additional conditions other than those set forth in the Debt Financing Commitment or terms that could reasonably be expected to prevent, delay or impede the Closing or the funding of the Debt Financing and (y) if such commitments are reduced, the Equity Financing Commitment is increased by an amount corresponding to such reduction. (c) Parent shall use its commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable ~~or proper~~ to arrange and obtain the Debt Financing on the terms and conditions described in the Debt ~~Commitment Letter pursuant to the terms thereof (including any “market flex” provisions)~~ Financing Commitments, including using ~~its~~ commercially reasonable best efforts to ~~seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s~~(i) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement. (b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt ~~Commitment Letter~~ Financing Commitments pursuant to their terms, (~~provided that~~ ii) satisfy, perform and observe on a timely basis all conditions and, in all material respects, all covenants applicable to Parent or Merger Sub in the Debt ~~Commitment Letter may be amended, supplemented, replaced, modified or waived as provided~~ Financing Commitments and otherwise comply in ~~this Section 6.13)~~all material respects with its obligations thereunder, (Biii) to negotiate in good faith and enter into definitive agreements with respect to the Debt ~~Commitment Letter (the “Debt~~ Financing ~~Agreements”)~~ on the terms and conditions (including any flex provisions) contemplated by the Debt Financing Commitments, (iv) upon satisfaction of the conditions contained in the Financing Commitments, consummate the Financing at or prior to Closing, and (v) refrain from using any proceeds of the Debt Financing as a dividend to Parent’s stockholders, if necessary. Without limiting the generality of the foregoing, Parent shall give the Company prompt notice (which in no event shall be more than two (2) Business Days from their knowledge thereof): (A) of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by any party to any Financing Commitment or definitive document related to the Financing; and (B) of the receipt of any written notice or other written communication from any member of the Financing Group with respect to any material breach or default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing or any provisions of the Financing Commitment or any definitive document related to the Financing. Notwithstanding anything to the contrary contained in this Agreement, nothing contained in this Agreement shall require, and in no event shall the commercially reasonable best efforts of Parent or Merger Sub be deemed or construed to require, either Parent, Merger Sub or any of their Affiliates to (i) pay any fees or other amounts related to the Debt Financing in excess of those contemplated by the Debt Financing Commitments (and related fee letters) or (ii) threaten, commence or pursue litigation, arbitration or other adversarial proceedings against any Debt Financing Source or Affiliate of any of same. Notwithstanding anything to the contrary contained in this Agreement, the Company acknowledges and agrees that ~~are~~ it derives no contractual rights, whether as a third party beneficiary or otherwise, under the Debt Financing Commitments or any debt financing document related to the Debt Financing and shall not be entitled to enforce any such Debt Financing Commitments or documents against any agent, arranger, bookrunner, lender, letter of credit issuer or other financing party that is a party to any such Debt Financing Commitments or document (including PNC Bank, National Association, GSO Capital Partners LP and their respective Affiliates) (collectively, the “Financing Group”). (d) In the event any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated (including flex provisions) in the Debt Financing Commitment, Parent shall use its commercially reasonable best efforts to promptly arrange and obtain any such portion from alternative sources (the “Alternative Financing”) on terms not materially less favorable to Parent than those ~~contained~~ in the ~~Debt Commitment Letter~~Financing Commitments (taking into account flex provisions) (as determined in the sole discretion of Parent). Parent shall promptly provide a true, correct and complete copy of each Alternative Financing commitment (Ctogether with a copy of any related fee letter with only the fee amount redacted) to ~~satisfy on a timely basis~~ the Company. (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior e) Prior to the Closing, ~~(D) to comply with its obligations under~~ at Parent’s sole expense, the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub Company shall use ~~their~~ commercially reasonable best efforts to ~~enforce their rights under,~~ provide Parent and ~~cause~~ Merger Sub with such cooperation in connection with the ~~Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive~~ financing ~~agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail~~ of the ~~status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.~~ Merger (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of including the Debt Financing contemplated by the Debt ~~Commitment Letter on the terms set forth therein. Parent shall promptly provide any information~~ Financing Commitments) as may be reasonably requested by Parent; provided, that (i) no liability or obligation (including any liability or obligation to pay any commitment or other similar fee) of the Company ~~relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit~~ or any of its ~~Affiliates to~~Subsidiaries under any certificate, ~~without~~ document or instrument shall be effective until the ~~prior written consent~~ Effective Time and none of the ~~Company,~~ Company or any of its Subsidiaries shall be required to take any action that is not contingent upon the Closing (including the entry into of any agreement that is effective before the Effective Time) or ~~enter into any transaction~~ that would be effective prior to the Effective Time, (ii) nothing herein shall require such cooperation to the extent it would interfere unreasonably with the business or operations of the Company or any of its Subsidiaries, (iii) none of the Company or any of its Subsidiaries shall be required to issue any offering or information document and (iv) none of the Company or any of its Subsidiaries shall be required to take any action pursuant to this Section 4.13(e) that would subject it to actual or potential liability for which it would not be indemnified hereunder or to bear any cost or expense or to pay any commitment or other similar fee or make any other payment or provide or agree to provide any indemnity in connection with the Financing or any of the foregoing prior to the Effective Time. Subject in all cases to the proviso in the immediately preceding sentence, such cooperation shall include the following: (A) participating in a reasonable number of meetings (including customary one-on-one meetings with the parties acting as lead arrangers or agents for, and prospective lenders and purchasers of, the Debt Financing and senior management and Representatives, with appropriate seniority and expertise, of the Company and its Subsidiaries), presentations, road shows, due diligence sessions, and drafting sessions; (B) assisting Parent and Merger Sub with the preparation of customary offering memoranda, bank information memoranda, and similar documents relating to the Debt Financing; (C) delivery to Parent, Merger Sub and their Financing Sources of all information with respect to the business, operations, financial condition, projections and prospects of the Company and its Subsidiaries as may be reasonably requested by Parent (including in connection with Parent’s preparation of pro forma financial statements); (D) participation by senior management of the Company in the negotiation of, and the execution and delivery of, the definitive agreements contemplated by the Debt Financing Commitments; (E) providing and executing documents as may be ~~expected~~ reasonably requested by Parent, including a certificate of the Chief Financial Officer of the Company with respect to ~~materially impair~~solvency matters; (F) executing and delivering customary pledge and security documents, ~~delay or prevent consummation~~ affidavits of title, estoppels and ground lease estoppels and consents, and otherwise facilitating the pledge of collateral; (G) cooperating with marketing efforts of Parent, Merger Sub and their Financing Sources for all or any portion of the Debt Financing. ; (dH) ~~Parent shall have~~ using commercially reasonable efforts to obtain accountant’s comfort letters and legal opinions from the ~~right~~ Company’s current outside legal counsel (it being understood that the main enforceability legal opinion relating to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing will be rendered by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available counsel to Parent) reasonably requested by Parent; and (I) using commercially reasonable best efforts to arrange for customary payoff letters, ~~is sufficient to pay all amounts required to be paid~~ Lien terminations and instruments of discharge in connection with the ~~transactions contemplated by this Agreement, (x) the proceeds~~ repayment of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations outstanding Indebtedness of the Company and its Subsidiaries, as contemplated by the Financing Commitments. All non-public or otherwise confidential information regarding the Company or any of its Subsidiaries obtained by Parent, Merger Sub or any of their respective Representatives pursuant to this Section ~~6.14~~ 4.13(e) shall ~~no longer~~ be kept confidential in ~~effect. Further~~accordance with the Confidentiality Agreement; provided, that the Company agrees that Parent ~~shall have~~ and Merger Sub may share non-public or otherwise confidential information with the ~~right to substitute commitments~~ Financing Sources in ~~respect of other financings for all or any portion of~~ connection with the ~~Debt Financing from the same and/or alternative financing sources so long as the aggregate amount~~ marketing of the Debt Financing, ~~together~~ and each such Financing Source shall be deemed a “Representative” (as defined in the Confidentiality Agreement) thereunder and the Affiliate of Parent that is a counterparty to the Confidentiality Agreement shall be responsible for any breach of the Confidentiality Agreement by such Financing Source or its officers, directors, employees or other representatives with ~~other cash and cash equivalents available to Parent~~whom the confidential information is shared. Parent shall, ~~is sufficient to pay~~ promptly upon request by the Company, reimburse the Company for all ~~amounts required to be paid~~ reasonable out-of-pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries in connection with the ~~transactions~~ cooperation contemplated by this ~~Agreement~~ Section 4.13(e). Parent and Merger Sub shall, on a joint and several basis, indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all ~~conditions precedent to funding~~ liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by any of ~~such financing are,~~ them in ~~respect~~ connection with the arrangement of ~~certainty of funding, equivalent to~~ the Financing (~~or more favorable~~ including any action taken in accordance with this Section 4.13(e)) and any information utilized in connection therewith (other than historical information relating to the Company ~~than)~~ or any of its Subsidiaries approved by the ~~conditions precedent~~ Company in writing specifically for use in the Debt Financing offering documents). The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the Debt Financing; provided, that such logos shall be used solely in a manner that is not intended or reasonably likely to harm or disparage the Company or any of its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries or any of their respective Intellectual Property rights or imply that the Company or any of its Subsidiaries have prepared, endorsed or approved any such materials. Notwithstanding anything to the contrary, the condition set forth in Section 5.2(b), as it applies to the ~~Debt Commitment Letter~~Company’s obligations under this Section 4.13(e), shall be deemed satisfied unless the Financing (or any alternative financing) has not been obtained primarily as a result of the Company’s or its Subsidiaries’ knowing and material breach of their obligations under this Section 4.13(e). (f) Each of Parent and Merger Sub acknowledges and agrees that the obtaining of the Financing, or any alternative financing, is not a condition to ~~supplement~~ Closing. In addition, each of Parent and Merger Sub acknowledges and agrees that any dividend payments by the Parent or ~~replace~~ any of its Affiliates as described in the Debt Financing Commitments are not a condition to Closing. (g) For purposes of this Section 4.13, unless the context otherwise requires, references to “~~Alternative Debt~~ Financing~~”). True~~” shall include the financing contemplated by the Financing Commitments as permitted to be replaced, ~~correct and complete copies of each alternative~~ amended and/or modified by this Section 4.13, references to “Equity Financing” shall include the equity financing ~~commitment in respect of such Alternative Debt~~ contemplated by the Equity Financing ~~(each~~Commitment as permitted to be amended and/or modified by this Section 4.13, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided references to ~~the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the~~ “Debt Financing” shall include the debt financing contemplated by the Debt ~~Commitment Letter~~ Financing Commitments as permitted to be replaced, amended and/or modified ~~pursuant~~ by this Section 4.13 and references to ~~clause (ii) below, (ii) any reference in this Agreement to the~~ “Equity Financing Commitment” or “Debt ~~Commitment Letter~~Financing Commitments” shall include such documents as permitted to be ~~deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect~~replaced, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated amended and/or modified by this ~~Agreement~~Section 4.13.

Appears in 1 contract

Sources: Merger Agreement (Material Sciences Corp)

Financing. (a) ~~Subject to the terms and conditions of this Agreement, Parent~~ Buyer shall use its commercially reasonable ~~best~~ efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable ~~or proper~~ to ~~arrange and obtain~~ (i) maintain in effect the Debt Financing and the Debt Financing Commitments, (ii) negotiate and enter into definitive financing agreements with respect to the Debt Financing and Debt Financing Commitments on ~~the~~ terms and conditions (including any “flex” provisions) described in the Debt ~~Commitment Letter pursuant~~ Financing Commitments so that such agreements are in effect no later than the Closing, (iii) cause its Representatives to cooperate in the preparation of all documents (including offering memoranda, private placement memoranda, prospectuses and road show presentations, if any) and the making of all filings in connection with the Financing and the other transactions contemplated by the Financing Commitments, and in executing and delivering all documents and instruments related to the ~~terms thereof~~ Financing Commitments, (~~including any “market flex” provisions~~iv) ~~including using~~ satisfy on a timely basis all conditions in the Financing Commitments and comply with its ~~reasonable best efforts~~ obligations thereunder (in each case, that are in its control) and (v) subject to ~~seek to enforce its rights under~~ the satisfaction or waiver of the conditions set forth in the Debt ~~Commitment Letter~~ Financing Commitments, otherwise take, or cause to be taken, all actions and do, or cause to be done, all other things necessary, proper or advisable to consummate the Debt Financing at or prior to the Closing. Buyer shall keep Seller fully informed of material developments in ~~the event~~ respect of ~~a breach thereof by~~ the financing ~~provider(s) thereunder~~process relating thereto. ~~Parent~~ Notwithstanding anything to the contrary herein, the commercially reasonable efforts of Buyer with respect to the Debt Financing shall ~~not~~not include any obligation to institute any Action against a Financing Source providing Debt Financing. From the date hereof to the Closing, ~~without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made~~ Buyer shall not agree to, or permit, any amendment or modification of, or waiver ~~of any provision~~ under, the Financing Commitments or other final documentation relating to the Debt ~~Commitment Letter if such amendment, supplement, replacement, modification~~ Financing in a manner that would (x) materially delay or ~~waiver~~ prevent the Closing in any respect or (y) (A) ~~reduces~~ reduce the aggregate amount of the ~~cash proceeds from~~ Debt Financing Commitments (including by changing the amount of fees to be paid or original issue discount of the Debt Financing or similar fees) unless the Equity Financing is increased by a corresponding amount, (B) ~~imposes~~ impose new or additional ~~conditions to the initial funding~~ material conditions, or otherwise ~~expands~~ amend, modify or expand any ~~of the~~ conditions in a material manner, to the receipt of the Debt Financing, ~~or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would~~ (C) reasonably be expected to ~~(x) delay or prevent~~ make the funding ~~in full~~ of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) ~~on the Closing Date,~~ less likely to occur or (yD) adversely ~~affect~~ impacts the ability of ~~Parent~~ Buyer to enforce its rights against the other parties to the Debt Financing Commitment ~~Letter~~ or the definitive agreements with respect ~~thereto~~ thereto, the ability of Buyer to consummate the transactions contemplated hereby or the likelihood of consummation of the transactions contemplated hereby, without the prior written consent of Seller (~~provided~~which consent may not be unreasonably withheld, ~~that Parent may amend the Debt Commitment Letter to add~~ conditioned or ~~replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing~~delayed)~~. Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement~~. (b) ~~Parent shall~~Prior to the Closing, Seller shall use its reasonable best efforts to provide, and shall cause its Affiliates and Representatives toto use reasonable best efforts to provide, ~~use~~ all reasonable cooperation requested by Buyer in connection with the arrangement of the Debt Financing, including using its reasonable best efforts to (Ai) ~~to maintain in effect~~ furnish the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of Sources providing the Debt Financing (as promptly as reasonably practicable) with financial and other pertinent information regarding the Business and the JVs required pursuant to the Financing Commitments; (ii) participate in a reasonable number of meetings (including customary one-on-one meetings with the parties acting as lead arrangers or agents for the Financing Sources), drafting sessions, road shows, rating agency presentations and due diligence sessions; (iii) furnish Buyer for distribution to the Financing Sources providing the Debt Financing as promptly as practicable with pertinent information as is customary in connection with the Financing regarding the Business’ and the JVs’ assets and operations and any security required therefor; (iv) assist Buyer and the Financing Sources providing the Debt Financing in the preparation of a customary offering document and bank information memoranda and lender presentations for any of the Financing, and materials for rating agency presentations; (v) take all corporate actions, subject to the consummation of the Closing, reasonably requested by Buyer to permit the consummation of the Financing and to permit the proceeds thereof to be made available to Buyer; (vi) cause the appropriate authorized Representatives of Seller or the Business or the JVs to execute and deliver any pledge and security documents, definitive financing documents or other certificates or documents as may be reasonably requested by Buyer or otherwise facilitate the pledging of Collateral (as defined in the Financing Commitments) for delivery at the ~~Closing set forth therein that are within its control or subject to its influence and, upon satisfaction~~ consummation of the ~~conditions set forth in the Debt Commitment Letter, to consummate the Debt~~ Financing at or prior to the Closing; (vii) cause the appropriate authorized Representatives of Seller to execute and deliver any credit agreements or indentures or other definitive financing documents on terms satisfactory to Buyer at and as of the Closing; (viii) provide, if requested by Buyer, authorization letters (Dincluding with respect to absence of material non-public information in any public-side version of documents distributed to prospective lenders) to ~~comply with its obligations under~~ the ~~Debt Commitment Letter, and (E) to consummate~~ Financing Sources providing the Debt Financing authorizing the distribution of information to prospective lenders; (ix) cooperate reasonably with the Financing Sources providing the Debt Financing’s due diligence, to the extent customary and reasonable; (x) cooperate reasonably with the Financing Sources providing the Debt Financing to obtain accountant’s comfort letters, legal opinions and, at Buyer’s sole cost and expense, surveys, title insurance, landlord, warehouseman and bailee lien and access agreements, deposit and investment control agreements, in each case as reasonably requested by Buyer and customary for financings similar to the Debt Financing; (xi) at least five days prior to the Closing, provide all documentation and other information about the Business or the JVs as is reasonably requested in writing by Buyer which relates to applicable “know your customer” and anti-money laundering rules and regulations including without limitation the USA PATRIOT ACT; (xii) negotiate in good faith a subordination arrangement with respect to the Notes on substantially the terms of the agreements attached to the Notes (with any immaterial modifications to such terms as are reasonably satisfactory to the Seller and the Financing Sources providing the Debt Financing); and (xiii) providing (A) documents reasonably requested by Buyer or its Financing Sources relating to the repayment of the existing Indebtedness of the Business or the JVs and the release of related Liens (except Permitted Liens), including customary payoff letters; and (B) an executed certificate of the Person who will be President or Controller of the Business or the JVs immediately following the Closing with respect to solvency matters substantially in the form attached to the Debt Financing Commitment. Notwithstanding anything herein to the contrary, (w) nothing in this Section 7.13 shall require such cooperation to the extent it would require Seller to waive or amend any terms of this Agreement, (x) nothing in this Section 7.13 shall require such cooperation from Seller or its Affiliates to the extent it would unreasonably interfere with the ongoing operations of Seller, the Business, the JVs or their respective Affiliates, (y) nothing in this Section 7.13 shall allow any sampling or other invasive investigation of the air, soil, soil gas, surface water, groundwater, building materials or other environmental media and (z) no liability or obligation of Seller, the JVs or any of their respective Affiliates, or any of their respective Representatives, under any certificate, agreement, arrangement, document or instrument relating to the Financing shall be effective until the Closing. Buyer Indemnifying Party shall indemnify and hold harmless Seller, the JVs, their respective Affiliates and their respective directors, officers, employees and Representatives from and against any and all losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with the arrangement of the Financing and any information used in connection therewith, in each case other than to the extent any of the foregoing arises from the bad faith, gross negligence or willful misconduct of, or material breach of this Agreement by, Seller, the JVs or their respective Affiliates. Any information provided by Seller in connection with seeking the Financing shall be prepared in good faith. The Buyer shall reimburse Seller for all of the documented reasonable out of pocket costs and expenses incurred by Seller, the JVs or their respective Affiliates in connection with this Section 7.13 on or prior to the ~~Effective Time. In~~ Closing or promptly following the ~~event that all~~ Closing or the termination of this Agreement. (c) If, notwithstanding the use of commercially reasonable efforts by Buyer to satisfy its obligations under Section 7.13(a), any of the Debt Financing or the Debt Financing Commitments (or any definitive financing agreement relating thereto) expires or is terminated prior to the Closing, in whole or in part, for any reason, Buyer shall (i) promptly notify Seller of such expiration or termination and the reasons therefor and (ii) promptly arrange for alternative financing on terms and conditions ~~precedent expressly~~ no less favorable to Buyer (taking into account any “market flex” provisions), in the aggregate, than those set forth in the Debt ~~Commitment Letter have been or, upon funding of the Debt~~ Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reasonCommitments, (iithe “Required Financing Alternative”) ~~Parent becomes aware of any breach or default (A) by any Financing Source party~~ from other sources to replace the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing financing contemplated by ~~the Debt Commitment Letter on the terms set forth therein. Parent~~ such expired or terminated commitments or agreements, which Required Financing Alternative shall ~~promptly provide any information reasonably requested by the Company relating to any circumstances referred to~~ be in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate an amount ~~of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is~~ sufficient to pay ~~all amounts required to be paid in connection with~~ for the consummation of the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (fd) Notwithstanding anything to the contrary contained ~~herein~~in Section 7.13(a), ~~Parent’s obligations hereunder are not subject to a condition regarding Parent’s or~~ at any ~~of its Affiliates’ obtaining~~ time Buyer may replace the Debt Financing with alternative financing arrangements which (i) provide Buyer with sufficient funds to consummate ~~the Merger and~~ the transactions contemplated by this ~~Agreement~~Agreement prior to or concurrent with the Closing and (ii) do not prevent or materially impair or delay the Closing (together with the Required Financing Alternative, the “Financing Alternative”). In the event Buyer replaces the Debt Financing with any Financing Alternative, the terms of Section 7.13(a) shall no longer apply with respect to the Financing, but shall thereafter apply with respect to the Financing Alternative.

Appears in 1 contract

Sources: Asset Purchase and Contribution Agreement (Chemtura CORP)

Financing. (a) ~~Subject to the terms~~ Each of Parent and ~~conditions of this Agreement, Parent~~ Merger Sub shall ~~use its reasonable best efforts to~~ take, or cause to be taken, all actions ~~and to do, or cause to be done, all things~~ necessary, proper or advisable ~~or proper~~ to arrange and obtain the ~~Debt~~ proceeds of the Equity Financing on the terms and conditions described in the ~~Debt~~ Equity Commitment ~~Letter pursuant to the terms thereof~~ Letter, including: (~~including any “market flex” provisions~~i) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the entering into definitive agreements with respect ~~thereto~~ thereto, (~~provided~~ii) satisfying, or causing to be satisfied, on a timely basis all conditions applicable to, and within the control of, Parent, Merger Sub or their respective representatives in such definitive agreements and (iii) causing such Equity Financing to be funded at the Closing such that Parent or Merger Sub may ~~amend~~ pay all of the ~~Debt~~ amounts payable by them in connection with the Merger and the other Transactions. (b) Parent shall not agree to any amendment or modification to, or grant any waiver of, any condition or other provision under the Equity Commitment Letter ~~to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent~~ without the ~~Closing). Parent shall promptly deliver~~ prior written consent of the Company to the ~~Company true, complete and correct copies of~~ extent any such amendment, modification or waiver would reduce the aggregate amount of cash proceeds available from the Equity Financing to fund the Merger and the other Transactions (as compared to the amount of such aggregate proceeds contemplated under the Equity Financing as in effect on the date hereof) or would impose new or additional conditions that would be reasonably likely to (i) prevent or materially delay or impair the ability of Parent or Merger Sub to consummate the Merger and the other Transactions or (ii) adversely impact the ability of Parent or Merger Sub to enforce their respective rights against the other parties to the Equity Commitment Letter. Parent shall not release or consent to the termination of the obligations of the other parties to the Equity Commitment Letter, except for assignments and replacements of investors in accordance with the express terms of the Equity Commitment Letter. Notwithstanding anything to the contrary set forth herein, Parent shall have the right to amend, replace, supplement or otherwise modify, or waive any of its rights under, the Equity Commitment Letter or any definitive agreements with respect to the Equity Financing, and/or substitute debt or other equity financing for all or any portion of the Equity Commitment Letter from the same and/or alternative financing sources; provided that any such amendment, replacement, supplement or other modification to or waiver of any provision of the Equity Commitment Letter or such definitive agreements with respect to the Equity Commitment Letter and/or substitution for all or any portion of the Equity Commitment Letter shall not (i) expand upon the conditions contained therein in any way or prevent or cause any delay of the consummation of the Merger or the other Transactions or (ii) otherwise result in financing terms that are materially less favorable, in the aggregate, to Parent, Merger Sub and the Company than those in the Equity Commitment Letter as in effect on the date hereof. (bc) If any portion of the Equity Financing becomes or could become unavailable in the manner or from the sources contemplated in the Equity Commitment Letter, (i) Parent ~~shall~~shall immediately so notify the Company in writing and (ii) Parent and Merger Sub shall arrange and obtain, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to, alternative financing from the same or alternative sources in an amount sufficient to consummate the ~~Debt Commitment Letter (~~Merger and the ~~“Debt Financing Agreements”)~~ other Transactions on ~~the~~ terms and conditions ~~that are~~ not materially less ~~favorable~~ favorable, in the aggregate, to ~~Parent~~ Parent, Merger Sub and the Company than those ~~contained~~ in the ~~Debt~~ Equity Commitment Letter as in effect on the date hereof, as promptly as practicable following the occurrence of such event. (d) Parent shall (i) furnish to the Company complete, correct and executed copies of the agreements for the Equity Financing or any alternative financing promptly upon their execution, (ii) give the Company prompt notice of any breach or threatened breach of which Parent or Merger Sub is or becomes aware by any party to any of the Equity Commitment Letter, ~~(C) to satisfy on a timely basis (~~any alternative financing commitment or ~~obtain the waiver of), and in a manner that will not impede the ability~~ any alternative financing agreement of ~~the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control~~ which Parent or ~~subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at~~ Merger Sub is or ~~prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter~~becomes aware or any termination or threatened termination thereof, and (Eiii) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall otherwise keep the Company reasonably informed ~~on a current basis and in reasonable detail~~ of the status of its efforts to arrange the ~~Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt~~ Equity Financing ~~Agreements.~~ (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any ~~Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B~~alternative financing), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On For the ~~Closing Date~~avoidance of doubt, Parent ~~shall provide all funds required to effect~~ and Merger Sub acknowledge and agree that neither the ~~repayment~~ obtaining of ~~all indebtedness under~~ the ~~Company Credit Agreement in full in accordance with the Company Credit Agreement~~Equity Financing nor any alternative financing, ~~subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything~~ including any debt financing, is a condition to the ~~contrary contained herein, Parent’s~~ obligations ~~hereunder are not subject to a condition regarding Parent’s or any~~ of ~~its Affiliates’ obtaining funds~~ Parent and Merger Sub to consummate the Merger and the ~~transactions contemplated by this Agreement~~other Transactions and reaffirm their obligations to consummate the Merger and the other Transactions irrespective and independently of the availability of the Equity Financing or any alternative financing, subject to fulfillment or waiver of the conditions set forth in Article 7.

Appears in 1 contract

Sources: Merger Agreement (Seracare Life Sciences Inc)

Financing. (a) ~~Subject to the terms and conditions of this Agreement, Parent~~ Buyer shall use commercially reasonable efforts to, and shall cause its Financing Affiliates to use commercially reasonable ~~best~~ efforts to, take all actions and to ~~take,~~ do or cause to be ~~taken, all actions and to do, or cause to be done,~~ done all things necessary, proper or advisable ~~or proper~~ to ~~arrange and~~ obtain the proceeds of the Debt Financing on the terms and conditions described in the Debt Commitment Letter ~~pursuant to~~ (provided, that the ~~terms thereof~~ Financing Affiliates may (~~including any “market flex” provisions~~i) ~~including using its reasonable best efforts to seek to enforce its rights under~~ amend the Debt Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Commitment Letter as of the date of this Agreement so long as the addition of such additional parties would not reasonably be expected to materially delay or prevent the Closing or (ii) otherwise replace or amend the Debt Commitment Letter so long as such action would not reasonably be expected to delay or prevent the Closing and the terms are not materially less beneficial to Buyer, with respect to conditionality, than those in the ~~event~~ Debt Commitment Letter as in effect on the date of ~~a breach thereof by the financing provider(s) thereunder~~this Agreement). ~~Parent~~ Buyer shall ~~not, without the Company’s prior written consent,~~ not permit any ~~amendment, supplement, replacement~~ amendment or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter without the prior written consent of Sellers if such amendment, supplement, ~~replacement,~~ modification or ~~waiver~~ waiver: (Ai) reduces the aggregate amount of the ~~cash proceeds from~~ Debt Financing (including by increasing the amount of fees to be paid or original issue discount as compared to such fees and original issue discount contemplated by the Debt Commitment Letter and related fee letters in effect on the date hereof unless the Debt Financing or is increased by such amount) to an amount which, together with available equity, is less than required for Buyer to be able to consummate the Closing on the Closing Date; (Bii) (A) imposes new or additional conditions ~~to the initial funding~~ or (B) otherwise ~~expands~~ adversely expands, amends or modifies any of the conditions precedent to ~~the receipt of~~ the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment ~~Letter~~ Letter, in the case of clause (B), in a manner that would reasonably be expected to ~~(x)~~ prevent or materially delay ~~or prevent~~ the ~~funding in full~~ ability of Buyer to consummate the ~~Debt Financing (or satisfaction of the conditions to the Debt Financing)~~ Closing on the Closing Date~~, or~~ ; or (yiii) would otherwise materially adversely ~~affect~~ impact the ability of ~~Parent~~ Buyer to enforce its rights against other parties to the Debt Commitment Letter or otherwise to timely consummate the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing)transactions contemplated by this Agreement. ~~Parent~~ Buyer shall promptly deliver to ~~the Company true, complete and correct~~ Seller copies of any such amendment, ~~modification~~ modification, waiver or replacement. For purposes of this Agreement, references to “Debt Financing,” shall include the financing contemplated by the Debt Commitment Letter as permitted to be amended, modified or replaced by this Section 4.7(a) or 4.7(c) and references to “Debt Commitment Letter” shall include such documents as permitted to be amended, modified or replaced by this Section 4.7(a) or 4.7(c). (b) ~~Parent shall, and~~ Buyer shall ~~cause its Affiliates and Representatives~~ use commercially reasonable efforts to~~, use its reasonable best efforts~~ : (Ai) to maintain in effect the Debt Commitment ~~Letter~~ Letter; (~~provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B~~ii) to negotiate and enter into definitive agreements with respect to the Debt ~~Commitment Letter (the “Debt~~ Financing ~~Agreements”)~~ on the terms and conditions ~~that are not~~ contained in the Debt Commitment Letter (including the “flex” provisions contained in any related fee letter) or on other terms in the aggregate materially no less favorable to ~~Parent~~ Buyer, as to conditionality, than the terms and conditions in the Debt Commitment Letter; provided, that in no event shall any such definitive agreement contain terms (other than those included in the Debt Commitment Letter) that would reasonably be expected to prevent or materially delay the Closing; (iii) satisfy (or, if deemed advisable by Buyer, seek the waiver of) on a timely basis all conditions applicable to Buyer that are within its control as set forth in the Debt Commitment Letter and to comply with all of its material obligations pursuant to the Debt Commitment Letter; (iv) upon satisfaction of such conditions, cause the funding of the Debt Financing at or prior to Closing; (v) enforce all of its rights under the Debt Commitment Letter (provided that Buyer shall not be obligated to institute litigation in respect thereof); provided that all of the conditions to Buyer’s obligations under Section 7.2 (except those to be satisfied at the Closing) have been satisfied or waived; and (vi) give Seller prompt notice of any material breach by any party to the Debt Commitment Letter of which Buyer has become aware or any termination of the Debt Commitment Letter. Without limiting the foregoing, Buyer agrees to notify Seller promptly if at any time Debt Provider notifies Buyer that such Debt Provider no longer intends to provide financing on the terms set forth therein. Notwithstanding anything to the contrary in this Agreement, nothing contained in this Section 4.7(b) shall require, and in no event shall the commercially reasonable efforts of Buyer be deemed or construed to require, Buyer or any Affiliate thereof to pay any material fees in excess of those contemplated by the Debt Commitment Letter (including pursuant to the “flex” provisions contained in any fee letter relating to the Debt Financing). (c) If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter or the Debt Commitment Letter is terminated or modified in a manner materially adverse to Buyer for any reason, Buyer shall promptly notify Seller in writing and shall use its commercially reasonable efforts to arrange to obtain alternative financing from alternative sources for such portion as promptly as practicable following such event on terms no less favorable to Buyer in any material respect as those contained in the Debt Commitment Letter and in an amount sufficient to fund the Required Amount (the “Alternate Financing”) and, if obtained, will provide Seller with a copy of, a new financing commitment that provides for at least the same amount of financing as provided under the Debt Commitment Letter originally issued, to the extent needed to fund the Required Amount, and on terms and conditions (including all terms, termination rights, flex provisions and funding conditions) no less favorable in any material respect to Buyer than those included in the Debt Commitment Letter (an “Alternate Debt Commitment Letter”). Buyer shall use its commercially reasonable efforts to take, or cause to be taken, all actions and things necessary, proper or advisable to arrange promptly and consummate the Alternate Financing on the terms and conditions described in any Alternate Debt Commitment Letter, including by complying with its obligations under clause (Cb) above as though the references therein to ~~satisfy on a timely basis~~ Debt Commitment Letter and Debt Financing were instead references to the Alternate Financing and the Alternate Debt Commitment Letter. For the avoidance of doubt, in the event that (i) all or ~~obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount~~ any portion of the Debt Financing contemplated to be raised under the Debt Commitment Letter has not been consummated and (ii) the conditions set forth in Article VII have been satisfied or waived (and which are, to the extent not satisfied or waived, at the time of the termination of this Agreement, capable of being satisfied if the Closing ~~set forth therein that are within its control or subject~~ were to ~~its influence and, upon satisfaction~~ occur at such time) and (iii) all of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been orsatisfied or waived (other than those conditions which by their nature are to be satisfied at Closing, ~~upon funding~~ but subject to the satisfaction of those conditions), Buyer shall use commercially reasonable efforts to cause the proceeds of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing facility contemplated by the Debt Commitment Letter ~~on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating~~ to ~~any circumstances referred~~ be used to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to cause the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full occur in accordance with the ~~Company Credit Agreement, subject to compliance with Section 6.14(a)(iii)~~terms and conditions hereunder. (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.

Appears in 1 contract

Sources: Purchase and Sale Agreement (Sandridge Energy Inc)

Financing. (a) ~~Subject to the terms and conditions of this Agreement, Parent~~ The Buyer shall use its commercially reasonable ~~best~~ efforts to ~~take, or cause to be taken, all actions~~ obtain and ~~to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain~~ effectuate the ~~Debt~~ financing contemplated by the Financing Commitments on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement. (b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Timetherein. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent The Buyer agrees to notify the ~~Company promptly~~Seller promptly and, ~~and~~ in any ~~event~~ case, within ~~two (2)~~ 3 Business ~~Days~~Days if, if at any time prior to the Closing ~~Date~~ Date, (i) ~~the Debt~~ any Financing Commitment ~~Letter is terminated~~ shall expire or be terminated, modified or amended for any ~~reason,~~ reason or (ii) ~~Parent becomes aware~~ any of ~~any breach or default (A) by any Financing Source~~ the financing sources that is a party to the Debt ~~Commitment Letter or any Debt Financing Agreement or (B) any other party to~~ Commitments notifies the ~~Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B),~~ Buyer that such ~~breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it~~ source will not ~~provide, or it refuses~~ be able to ~~provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter~~ provide financing substantially on the terms set forth ~~therein~~in the Debt Commitments. ~~Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent~~ The Buyer shall not, ~~nor~~ and shall it not permit any of its Affiliates to, without the prior written consent of the ~~Company~~Seller, take any action or enter into any ~~transaction~~ transaction, including any merger, acquisition, joint venture, disposition, lease, contract or debt or equity financing that would reasonably be expected to materially ~~impair,~~ delay or prevent ~~consummation of all or any portion of~~ the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the ~~Debt Commitment Letter as modified pursuant~~ Financing Commitments. The Buyer shall not amend or alter, or agree to ~~clause (ii) below~~amend or alter, ~~(ii)~~ the Financing Commitments in any ~~reference in this~~ manner that could reasonably be expected to materially delay or prevent the transactions contemplated hereby without the prior written consent of the Seller, which shall not be unreasonably withheld. Notwithstanding the foregoing, including the first sentence hereof, the Buyer shall not be prohibited from obtaining and effectuating financing on terms other than those contemplated by the Financing Commitments; provided the Buyer's efforts to obtain such alternate financing Asset Purchase Agreement to terms does not materially delay or prevent the ~~“Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question~~ financing and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment consummation of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement. (b) The Seller shall provide, and shall cause the Subsidiaries to provide, reasonable assistance to the Buyer’s efforts to obtain the funds contemplated by the Financing Commitments, including provision of existing financial statements for prior periods, facilitating customary due diligence and arranging for Business Employees to meet with prospective lenders in customary presentations or to participate in customary road shows, in each case upon the Buyer's request with reasonable prior notice and at the Buyer's sole cost and expense. The Seller shall use its commercially reasonable efforts to facilitate the engagement of KPMG, LLC by the Buyer for any purpose relating to the financing of the transactions contemplated hereby (including the provision of an auditors "comfort letter" by April 8, 2006, which, among other things, will relate to the quarterly financial statements for the quarter ending December 31, 2005, provided that such efforts in no way delay the delivery of the Audited Financial Statements) and to cause KPMG, LLC to provide its consent to the inclusion of its reports in any document filed with the Securities and Exchange Commission (it being understood and agreed that the Seller shall not be required to spend any funds, provide any indemnity or make any representations in any manner with respect to such engagement).

Appears in 1 contract

Sources: Asset Purchase Agreement (Charter Communications Inc /Mo/)

Financing. (a) Subject to the terms and conditions of this Agreement, Parent shall, and shall cause its Subsidiaries to use their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate, on or prior to the Closing Date, the Financing contemplated by the Commitment Letters on the terms set forth therein. Parent shall keep the Company reasonably informed of material developments in respect of Parent’s efforts to arrange the Financing. Prior to the Closing, without the prior written consent of the Company, Parent shall not agree to, or permit, any amendment, modification or supplement of, or waiver under, the Commitment Letters to the extent such amendment, modification, supplement or waiver would (i) reduce the aggregate amount to be funded under the Financing (including by changing the amount of fees to be paid or original issue discount of the Financing or similar fees), (ii) amend, modify or supplement the conditions or contingencies to the Financing in a manner that would reasonably be expected to make it less likely the Financing will be funded or imposes new or additional conditions or expands any existing condition to the receipt of the Financing, or (iii) adversely impact the ability of Parent to enforce its rights against the other parties to the Commitment Letters. Notwithstanding the foregoing, (x) Parent or its Subsidiary that is a party to the Commitment Letters may amend the Commitment Letters to add investors, lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Commitment Letters as of the date of this Agreement and, in connection therewith, amend the economic and other arrangements with respect to the existing and additional investors, lenders, lead arrangers, bookrunners, syndication agents or similar entities, if the addition of such additional parties and amendment of additional terms do not impact the aggregate amount of the Financing to be funded at the Closing or, individually or in the aggregate, would not be reasonably expected to delay or prevent the Closing or make it less likely the Financing will be funded, (y) neither this Section 8.15(a) nor any other provision herein shall be construed to require any of Parent or Merger Sub or any of their respective Affiliates to commence, threaten to commence or prosecute any claim, at law or in equity, against the other parties to the Commitment Letters or any other Person in order to consummate the Financing and (z) in the event that Parent or any of its Affiliates is required pursuant to this Section 8.15 to provide any information that is subject to attorney-client or similar privilege, Parent or such Affiliate may withhold disclosure of such information so long as Parent gives notice to the Company of the fact that it is withholding such information and thereafter the Company and Parent shall use their respective reasonable best efforts to cause such information to be provided in a manner that would not reasonably be expected to waive the applicable privilege or protection. (b) In the event any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Commitment Letters and such portion is necessary to fund the transactions contemplated by this Agreement, Parent shall promptly notify the Company and shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable ~~or proper~~ to arrange ~~and~~ to obtain ~~the Debt Financing~~ alternative financing from alternative sources for such portion (x) on ~~the~~ terms and conditions ~~described in the Debt Commitment Letter pursuant~~ not materially less favorable to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent ~~shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to,~~ or any ~~waiver~~ of ~~any provision under~~its Subsidiaries, as applicable, than the ~~Debt~~ Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or Letters and (y) ~~adversely affect~~ in an amount sufficient to consummate the ~~ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided~~transactions contemplated hereby. If obtained, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company ~~true,~~ true and complete ~~and correct~~ copies of a new financing commitment letter pursuant to which any such alternative source shall have committed to provide Parent or any of its Subsidiaries with any portion of the Financing. References in this Agreement to (i) “Financing” shall include the mezzanine financing and term loan financing contemplated by the Commitment Letters as amended, modified or replaced, (ii) “Commitment Letters” shall include such documents as amended, modified or replaced and (iii) “Financing Sources” shall include the providers of the Mezzanine Financing and Term Loan Financing under such documents as amended, modified or replaced (in the case of each of clauses (i), (ii) and (iii), including replacement with alternative financing and alternative financing commitments pursuant to this Section 8.15 from and after such amendment, modification or replacement~~. (b) Parent shall~~); provided, ~~and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided~~ that ~~the Debt Commitment Letter may be amended, supplemented, replaced, modified~~ fee letters or ~~waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the~~ side letters which do not contain “~~Debt Financing Agreements”) on~~ flex” or other provisions which affect the terms ~~and~~ or conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the ~~parties to consummate the Merger, all conditions to receipt of the full amount of the Debt~~ Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably not be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectprovided. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.

Appears in 1 contract

Sources: Merger Agreement (Multi Fineline Electronix Inc)

Financing. ~~(a) Subject to the terms~~ Each of Parent and ~~conditions of this Agreement, Parent~~ Merger Sub shall use its commercially reasonable ~~best~~ efforts to take, or cause to be taken, ~~all actions and to~~ or do, or cause to be done, all things necessary, proper or advisable ~~or proper~~ to ~~arrange~~ arrange, obtain and ~~obtain~~ consummate the ~~Debt~~ Financing on and in accordance with the terms and conditions (including agreeing to any requested changes to the commitments thereunder in accordance with any flex provisions therein) described in the ~~Debt~~ Financing Commitment ~~Letter~~ Letters, and the contribution contemplated by the Rollover Agreement pursuant to the terms ~~thereof (including any “market flex” provisions) including using its reasonable best efforts~~ thereof, and, subject to ~~seek to enforce its rights under~~ the ~~Debt Commitment Letter in the event~~ terms and conditions of ~~a breach thereof by the financing provider(s) thereunder. Parent~~ this Agreement, shall ~~not, without the Company’s prior written consent,~~ not permit any ~~amendment, supplement, replacement~~ amendment or modification to be made to, or any waiver of any provision under, the ~~Debt~~ Financing Commitment ~~Letter~~ Letters or the Rollover Agreement if such amendment~~, supplement, replacement~~, modification or waiver (A) with respect to the Financing Commitment Letters, reduces (or could have the effect of reducing) the aggregate amount of the ~~cash proceeds from~~ Financing (including by increasing the amount of fees to be paid or original issue discount unless (x) the Debt Financing or the Equity Financing is increased by a corresponding amount or the Debt Financing is otherwise made available to fund such fees or original issue discount and (y) the representation and warranty set forth in Section 5.10 shall be true and correct as of the date of such amendment, modification or waiver after giving effect thereto), or (B) imposes new or additional conditions ~~to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing,~~ or otherwise expands, amends or modifies any ~~other provision~~ of the ~~Debt Commitment Letter~~ conditions to the Financing or the contribution contemplated by the Rollover Agreement, in a manner that would reasonably be expected to (x) delay or prevent or make less likely the funding ~~in full~~ of the ~~Debt~~ Financing or the contribution contemplated by the Rollover Agreement (or satisfaction of the conditions to the ~~Debt Financing~~Financing or the contribution contemplated by the Rollover Agreement) on the Closing ~~Date,~~ Date or (y) adversely ~~affect~~ impact the ability of ~~Parent~~ Parent, Merger Sub or the Company, as applicable, to enforce its rights against ~~other parties~~ the Debt Financing sources pursuant to the ~~Debt~~ Financing Commitment ~~Letter~~ Letters or the ~~definitive agreements with~~ Rollover Agreement, in each of clauses (x) and (y) in any material respect ~~thereto~~ (provided, ~~that~~ that, subject to compliance with the other provisions of this Section 6.17(a), Parent and Merger Sub may amend the Debt Commitment Letter to add ~~or replace~~ additional lenders, ~~lead~~ arrangers, ~~bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing~~bookrunners and agents). Parent shall promptly deliver to the Company ~~true, complete and correct~~ copies of any ~~such~~ amendment, modification or ~~replacement. (b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A)~~ waiver to ~~maintain in effect the Debt~~ any Financing Commitment Letter ~~(provided that~~ or the ~~Debt~~ Rollover Agreement. References to “Financing” shall include the financing contemplated by the Financing Commitment ~~Letter may~~ Letters as permitted to be amended~~, supplemented, replaced~~, modified or waived ~~as provided in~~ by this Section ~~6.13~~6.17(a), ~~(B)~~ references to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as permitted to be amended, modified ~~pursuant to clause (ii) below~~or waived by this Section 6.17(a), ~~(ii) any reference in this Agreement~~ references to the “Rollover Investment” shall include the financing contemplated by the Rollover Agreement as permitted to be amended, modified or waived by this Section 6.17(a) and references to “Debt Commitment Letter” shall include such documents as permitted to be ~~deemed~~ amended, modified or waived by this Section 6.17(a). 69 Each of Parent and Merger Sub shall use its commercially reasonable efforts (A) to ~~include~~ maintain, or cause to be maintained, in effect and effect the ~~Debt~~ Financing Commitment ~~Letter which is not superseded by a New Debt Commitment Letter at~~ Letters and the ~~time in question~~ Rollover Agreement on the terms and ~~each New Debt Commitment Letter~~ conditions set forth therein, (B) to ~~the extent then in effect,~~ promptly negotiate and ~~(iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating~~ enter into definitive agreements with respect to the Debt Commitment Letter ~~that is not superseded by~~ on the terms and conditions (including agreeing to any ~~New~~ requested changes to the commitments thereunder in accordance with any flex provisions therein) contained in the Debt Commitment Letter at (or on terms no less favorable in the ~~time~~ aggregate to Parent or Merger Sub than the terms and conditions (including flex provisions) in ~~question and each New~~ the Debt Commitment Letter, subject in all respects to any restrictions on amendments or modifications set forth in by this Section 6.17), (C) to satisfy, or cause to be satisfied, on a timely basis all conditions to funding in the Debt Commitment Letter and such definitive agreements thereto and in the Equity Commitment Letter and the Rollover Agreement that it is required to satisfy and to consummate the Financing and make the Rollover Investment at or prior to the ~~extent then in effect. (e) On~~ Closing, including using its commercially reasonable efforts to cause the lenders and the other persons committing to fund the Financing and make the Rollover Investment, to fund the Financing and make the Rollover Investment at the Closing ~~Date~~on the terms and conditions set forth therein, (D) to promptly, diligently and fully enforce its rights under the Financing Commitment Letters and Rollover Agreement and (E) to comply with its, or cause their Affiliates to comply with their, obligations under the Financing Commitment Letters and the Rollover Agreement. Parent shall keep the Company fully informed, in all reasonable detail, of the status of its efforts to arrange and consummate the Debt Financing and of all material developments in respect thereof. Parent shall provide ~~all funds required~~ the Company, upon request, with copies of any executed material definitive documents in respect of the Debt Financing and such other information and documentation regarding the Debt Financing and any syndication efforts as shall be reasonably necessary to ~~effect the repayment of all indebtedness under~~ allow the Company ~~Credit Agreement in full in accordance with~~ to monitor the progress of such financing activities. Without limiting the generality of the foregoing, Parent and Merger Sub shall give the Company ~~Credit~~ prompt notice (x) of any actual or threatened breach or default by any party to any of the Financing Commitment Letters, Rollover Agreement, ~~subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything~~ or definitive agreements related to the ~~contrary contained herein~~Financing of which Parent or Merger Sub become aware, ~~Parent’s obligations hereunder are not subject~~ (y) of the receipt of (A) any written notice or (B) other written communication, in each case from any Financing source with respect to ~~a condition regarding Parent’s~~ any (1) actual or threatened breach, default, termination or repudiation by any party to any of ~~its Affiliates’ obtaining funds~~ the Financing Commitment Letters, Rollover Agreement or definitive agreements related to ~~consummate~~ the Financing of any provisions of the Financing Commitment Letters, Rollover Agreement or definitive agreements related to the Financing or (2) material dispute or disagreement between or among any parties to any of the Financing Commitment Letters, Rollover Agreement or definitive agreements related to the Financing with respect to the obligation to fund the Financing or the amount of the Financing to be funded at Closing, and (z) if at any time for any reason Parent or Merger Sub believes in good faith that it will not be able to obtain the Financing or the Rollover Investment on the terms and conditions, in the ~~transactions~~ amount, in the manner or from the sources contemplated by ~~this Agreement.~~any of the Financing Commitment Letters, the Rollover Agreement or definitive agreements related to the Financing. As soon as reasonably practicable, but in any event within two (2) Business Days of the date the Company delivers to Parent or Merger Sub a written request, Parent and Merger Sub shall provide any information reasonably requested by

Appears in 1 contract

Sources: Merger Agreement (Lionbridge Technologies Inc /De/)

Financing. (a) ~~Subject~~ Parent hereby agrees to maintain the ~~terms~~ availability, in full, of all funds referred to in Section 4.09 until the later of (i) the completion of the Merger and ~~conditions~~ the payment of all amounts in connection therewith (including pursuant to Section 6.04) and (ii) the valid termination of this ~~Agreement~~Agreement in accordance with Article VIII. (b) Parent shall, ~~Parent~~ and shall ~~use~~ cause its ~~reasonable best efforts to~~ affiliates to, take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable ~~or proper~~ to arrange and obtain the ~~Debt Financing~~ proceeds of the Equity Funding on the terms and conditions described in the ~~Debt Commitment~~ Equity Provider Letter, including to: (i) satisfy, or cause its Representatives to satisfy, on a timely basis all conditions in the Equity Provider Letter, (ii) immediately trigger any call provisions under the Equity Provider Letter ~~pursuant~~ and (iii) cause the Equity Funding to be funded prior to the ~~terms thereof~~ time contemplated hereunder for the Acceptance Time, including by seeking to enforce (including ~~any “market flex” provisions~~through litigation) ~~including using its reasonable best efforts to seek to enforce~~ its rights ~~under the Debt Commitment Letter~~ in ~~the event of a breach thereof by the financing provider(s~~connection therewith. (c) ~~thereunder.~~ Parent shall ~~not, without the Company’s prior written consent, permit~~ not agree to any ~~amendment, supplement, replacement~~ amendments or ~~modification to be made~~ modifications to, or grant any ~~waiver~~ waivers of, any condition or other provision under the Equity Provider Letter without the prior written consent of ~~any provision under,~~ the ~~Debt Commitment Letter~~ Company if such ~~amendment~~amendments, ~~supplement, replacement, modification~~ modifications or ~~waiver~~ waivers would (Ai) ~~reduces~~ reduce the aggregate amount of the ~~cash proceeds from the Debt Financing~~ Equity Funding or (Bii) ~~imposes~~ impose new or additional conditions ~~to the initial funding~~ or ~~otherwise expands~~ expand, modify or amend any ~~of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter~~ existing condition in a manner that would reasonably be expected to (xA) prevent or delay the ability of Parent to consummate the Transactions or ~~prevent~~ otherwise delay the ~~funding in full~~ Acceptance Time or Parent’s receipt of the ~~Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date,~~ financing thereunder or (yB) adversely ~~affect~~ impact the ability of Parent to enforce its rights against ~~other parties to~~ the ~~Debt Commitment Letter or~~ Parent Equity Provider. (d) In the ~~definitive agreements with respect thereto (provided~~event that any portion of the Equity Funding becomes unavailable on the terms and conditions contemplated in the Equity Provider Letter, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly ~~deliver to~~ notify the Company ~~true, complete and correct copies of any such amendment, modification or replacement. (b) Parent shall,~~ and shall ~~cause its Affiliates and Representatives to,~~ use its reasonable best efforts ~~(A)~~ to ~~maintain~~ obtain any such unavailable portion from alternative sources in ~~effect~~ an amount sufficient to consummate the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the Transactions upon terms ~~and conditions that are~~ not materially less favorable to ~~Parent than those contained in~~ the ~~Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain~~ parties hereto as promptly as practicable following the ~~waiver of)~~occurrence of such event, and in ~~a manner that will not impede~~ no event later than the ~~ability~~ Closing Date. Parent shall promptly provide the Company with the documentation evidencing such alternative sources of financing and shall give the Company prompt notice (but in any event within two (2) Business Days) of any material breach by any party to the Equity Provider Letter or any termination of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Equity Provider Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a reasonably current basis ~~and~~ in reasonable detail of the status of its efforts to arrange ~~the Debt Financing~~for replacement financing, ~~and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements~~if necessary. (ce) ~~Without limiting~~ For the ~~foregoing~~avoidance of doubt, Parent ~~agrees to notify~~ and Merger Sub acknowledge that their obligations hereunder are not conditioned on the ~~Company promptly~~receipt of the Equity Funding or any other financing, and that if Parent fails to obtain the Equity Funding contemplated by the Equity Provider Letter, or any alternative financing, Parent and Merger Sub shall continue to be obligated to perform their obligations under this Agreement, including this Section 6.06, and to consummate the Offer, the Merger and the other Transactions on the terms contemplated hereby (subject only to satisfaction or waiver of the conditions set forth in ~~any event within two (2~~Article VII and Exhibit C, as applicable) ~~Business Days~~unless and until this Agreement is validly terminated in accordance with its terms. The parties hereby agree and acknowledge that, ~~if at any~~ with respect to Parent’s obligations pursuant to this Section 6.06, time ~~prior~~ is of the essence. Notwithstanding anything to the ~~Closing Date~~ contrary in this Agreement, (i) ~~the Debt Commitment Letter is terminated~~ there shall be no cure period for any ~~reason~~breach by Parent of this Section 6.06 and (ii) nothing in this Agreement shall preclude any party to this Agreement from asserting that any purported termination was not valid. (f) Parent shall (i) furnish the Company with complete, correct and executed copies of the financing agreements promptly upon their execution, (ii) give the Company prompt notice of any material breach or material threatened breach by any party of the Equity Provider Letter, any alternative financing commitment, the financing agreements, or any alternative financing agreement of which Parent becomes aware ~~of any breach or default (A) by any Financing Source party to the Debt Commitment Letter~~ or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effecttermination thereof, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under otherwise keep the Company ~~Credit Agreement in full in accordance with~~ reasonably informed of the ~~Company Credit Agreement, subject~~ status of its efforts to ~~compliance with Section 6.14(a)(iii~~arrange the Equity Funding (or any alternative financing)~~. (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or~~ ; provided that neither Parent nor any of its ~~Affiliates’ obtaining funds~~ affiliates shall be under any obligation to ~~consummate the Merger and the transactions contemplated by this Agreement~~disclose any information that is subject to attorney client or similar privilege, but only if such privilege is asserted in good faith.

Appears in 1 contract

Sources: Merger Agreement (Global Defense Technology & Systems, Inc.)

Financing. (a) ~~Subject to the terms and conditions of this Agreement,~~ Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things ~~necessary,~~ necessary or advisable ~~or proper~~ to arrange the Debt Financing as promptly as practicable following the date of this Agreement (taking into account the anticipated timing of the Marketing Period) and ~~obtain~~ to consummate the Debt Financing on or before the ~~terms and conditions described~~ Closing Date, including the following: (i) maintaining in effect the Debt Commitment Letter ~~pursuant~~ until the Transactions are consummated (subject to ~~the terms thereof (including any “market flex” provisions) including using its reasonable best efforts~~ Parent’s right to ~~seek to enforce its rights under~~ replace, modify, waive or amend the Debt Commitment Letter in to the ~~event of a breach thereof by the financing provider(s~~extent permitted thereunder and under this Section 5.10); (ii) ~~thereunder. Parent shall not, without the Company’s prior written consent, permit~~ not permitting any ~~amendment, supplement, replacement~~ amendment or modification to be made to, or not consenting to any waiver of any provision or remedy under, and not replacing, the Debt Commitment ~~Letter if~~ Letter, other than such ~~amendment~~amendments, ~~supplement~~modifications, ~~replacement, modification~~ waivers or ~~waiver~~ replacements that do not: (A) ~~reduces~~ reduce the aggregate amount of the ~~cash proceeds from~~ Debt Financing (including by changing the amount of fees to be paid or original issue discount of the Debt Financing) unless the Funds Financing or is increased by a corresponding amount and an amended Funds Commitment Letter reflecting such increase is executed by the investment funds named therein and delivered to the Company, (B) ~~imposes~~ impose new or additional conditions to the ~~initial funding~~ receipt of the Debt Financing, amend or ~~otherwise expands~~ modify any of the conditions to the receipt of the Debt Financing in any manner adverse to the interests of the Company, or otherwise expand any conditions to the receipt of the Debt Financing, or ~~otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to~~ (xC)(1) materially delay or prevent the Closing beyond the date the Closing is required to be effected in accordance with Section 1.2, (2) make the funding ~~in full~~ of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) ~~on the Closing Date,~~ less likely to occur or (y3) adversely ~~affect~~ impact the ability of Parent to enforce its rights against the other parties to the Debt Commitment Letter or the definitive ~~agreements with respect thereto~~ Debt Financing Documents; provided that for the avoidance of doubt (~~provided, that Parent may amend~~ x) the foregoing restrictions shall not apply to the implementation of any “market flex” provisions under the Debt Commitment Letter as in effect on the date hereof and (y) Parent may amend (or amend and restate) the Debt Commitment Letter, any related fee credit or discount and engagement letters solely to (a) add ~~or replace~~ lenders, lead arrangers, bookrunners, syndication agents or any Person with similar roles or titles who had not executed the Debt Commitment Letter as of the date hereof, in each case, in all material respects in accordance with the terms of the Debt Commitment Letter and (b) amend titles, allocations and fee sharing arrangements with respect to the existing and additional lenders, arrangers, bookrunners, agents, managers or similar entities ~~so long as such action would not reasonably be expected to delay or prevent~~ in each case, in all material respects in accordance with the ~~Closing).~~ terms of the Debt Commitment Letters; provided that Parent shall promptly ~~deliver~~ furnish to the Company ~~true, complete and correct~~ copies of any agreements or other documentation with respect to such amendment~~, modification or replacement.~~; (biii) ~~Parent shall~~causing the Funds Financing to be consummated upon satisfaction of the conditions contained in the Funds Commitment Letter; (iv) satisfying on a timely basis (taking into account the anticipated timing of the Marketing Period) all conditions to the Debt Financing and the Funds Financing; (v) negotiating, executing and ~~shall cause its Affiliates~~ delivering Debt Financing Documents that reflect the terms and ~~Representatives to, use its reasonable best efforts (A) to maintain~~ conditions contained in ~~effect~~ the Debt Commitment Letter (~~provided that~~ including any “market flex” provisions related thereto) or such other terms as Parent may agree so long as such changes to the terms do not: (A) reduce the aggregate amount of the Debt Financing (including by changing the amount of fees to be paid or original issue discount of the Debt Financing) unless the Funds Financing is increased by a corresponding amount and an amended Funds Commitment Letter ~~may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)~~reflecting such increase is executed by the investment funds named therein and delivered to the Company, (B) impose new or additional conditions to ~~negotiate and enter into definitive agreements~~ the receipt of the Debt Financing, amend or modify any of the conditions to the receipt of the Debt Financing in any manner adverse to the interests of the Company, or otherwise expand any conditions to the receipt of the Debt Financing, or (C)(1) materially delay or prevent the Closing beyond the date the Closing is required to be effected in accordance with ~~respect~~ Section 1.2, (2) make the funding of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) less likely to occur or (3) adversely impact the ability of Parent to enforce its rights against the other parties to the Debt Commitment Letter (or the “definitive Debt Financing ~~Agreements”~~Documents; and (vi) ~~on the terms and conditions that are not materially less favorable to Parent than those contained~~ in the ~~Debt Commitment Letter,~~ event that (CA) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in Sections 6.1 and 6.3 have been satisfied (or, upon funding, would be satisfied) and (B) the conditions to the availability of the Debt ~~Commitment Letter~~Financing have been satisfied or waived (or, with the funding of the Debt Financing, would be concurrently satisfied), causing the applicable Financing Sources to ~~consummate~~ fund the full amount of the Debt Financing at or prior to the Closing, . (Db) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been orParent shall, upon ~~funding~~ reasonable written request of the ~~Debt Financing will be~~Company, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company reasonably informed ~~on a current basis and in reasonable detail~~ from time to time of the status of its efforts to arrange the Financing. Parent shall give the Company prompt notice of (i) any material breach or repudiation, or any threatened material breach or repudiation, by any party to the Commitment Letters of which Parent becomes aware and (ii) any material dispute or disagreement among any parties to the Debt ~~Financing,~~ Commitment Letter or the definitive agreements related to the Financing with respect to the obligation to fund or the amount of the Financing to be funded at Closing (and, for the avoidance of doubt, other than those related to the ordinary course negotiation of the definitive Debt Financing Documents). Without limiting Parent’s other obligations under this Section 5.10, if Parent becomes aware that a Financing Failure Event has occurred, Parent shall (i) promptly ~~following request~~ notify the Company of such Financing Failure Event and the reasons therefor, (ii) use its reasonable best efforts to obtain (on terms in all material respects as favorable to Parent as are reasonably available for financings of the type contemplated by the ~~Company~~Debt Commitment Letter in the debt markets at such time) alternative financing from alternative financing sources, in an amount sufficient (together with the Funds Financing) to pay the Merger Consideration and consummate the Transactions, as promptly as practicable following the occurrence of such event, and (iii) use its reasonable best efforts to obtain, and when obtained, promptly provide the Company with a copy of, a replacement financing commitment in accordance with Section 5.11(a)(ii) that provides for such alternative financing; provided, that if such alternative financing is obtained, any references to the ~~Company copies of all executed~~ Debt Financing ~~Agreements~~shall be deemed to include such alternative financing. (c) Parent shall use reasonable best efforts to enforce its rights under the Commitment Letters, including in the event of a Financing Failure Event. (d) Without limiting the foregoing, Parent ~~agrees~~ shall use reasonable best efforts to ~~notify the Company promptly, and in any event within two (2) Business Days, if at any time prior~~ cause to be delivered to the ~~Closing Date (i)~~ Financing Sources the financial statements of Pattonair and its Subsidiaries and take all other actions to satisfy the conditions set forth in paragraphs 10 and 11 of Annex VI of the Debt Commitment Letter ~~is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party~~ related to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company Pattonair and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectSubsidiaries. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.

Appears in 1 contract

Sources: Merger Agreement (Wesco Aircraft Holdings, Inc)

Financing. (a) ~~Subject~~ Parent and Acquisition Sub shall use their reasonable best efforts to obtain the Financing as set forth in the Financing Letters; provided, however, that notwithstanding anything in this Agreement to the ~~terms~~ contrary, Parent and ~~conditions~~ Acquisition Sub shall be entitled to obtain, in their sole discretion, substitute debt financing in place of ~~this Agreement~~some or all of the Financing provided under the Real Estate Debt Letter or one or both of the Senior Debt Letters ("Substitute Debt Financing") with one or more other nationally recognized financial institutions if, and only if, such Substitute Debt Financing would not (i) delay the consummation of the Merger past November 1, 2005 and (ii) prevent the delivery of the solvency letter contemplated by Section 5.13. (b) Parent shall provide prompt written notice to the Company of (i) Marathon's or Eugster's refusal or stated intent to refuse to provide the financing described in the Equity Commitment Letter and (ii) the Lenders' refusal or stated intent to refuse to provide the financing described in the Real Estate Debt Letter or any of the Senior Debt Letters, and/or any other lender's stated intent to refuse to provide the financing contemplated by any Substitute Debt Financing, and, in each case, the stated reasons therefor. In any such event, Parent shall use its reasonable best efforts to ~~take~~obtain alternative financing as promptly as practicable in an amount at least equal to the Required Cash Amount (it being understood that such reasonable best efforts would not require Parent to obtain financing that is, (x) with respect to the economic terms thereof, on terms less favorable to Parent thereunder than those set forth in the Financing Letters or the financing arrangements relating thereto, as the case may be, or ~~cause~~ (y) with respect to ~~be taken~~the non-economic terms thereof, ~~all actions and~~ on terms that are not substantially similar to ~~do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described~~ those set forth in the ~~Debt Commitment Letter pursuant~~ Financing Letters or the financing arrangements relating thereto, as the case may be). (c) From the date of this Agreement until the Effective Time, the Company agrees to ~~the terms thereof (including any “market flex” provisions) including using~~ provide, and shall cause its Subsidiaries to provide, and will use its reasonable best efforts to ~~seek~~ cause their respective Representatives to ~~enforce its rights under~~ provide, all cooperation reasonably requested by Parent in connection with the ~~Debt Commitment Letter in~~ arrangement of, and the ~~event~~ negotiation of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement. (b) Parent shall, and shall cause its Affiliates and Representatives to, ~~use its reasonable best efforts~~ the Financing (~~A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended~~and any substitutions, ~~supplemented, replaced, modified~~ replacements or ~~waived as provided in this Section 6.13~~refinancing thereof), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their including using reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) cause appropriate officers and employees to be available, on a customary basis and upon reasonable notice, to meet with prospective lenders and investors in presentations, meetings, road shows and due diligence sessions each conducted at the ~~Debt Commitment Letter is terminated for any reason~~expense of Parent, (ii) ~~Parent becomes aware~~ assist with the preparation of disclosure documents in connection therewith, (iii) execute and deliver any ~~breach~~ pledge and security documents or ~~default~~ other definitive financing documents as may be reasonably requested by Parent, (iv) direct (A) ~~by any Financing Source party~~ its independent accountants and counsel to provide reasonable assistance to Parent, including requesting that such accountants provide consent to Parent to use their audit reports and SAS 100 reviews relating to the ~~Debt Commitment Letter or~~ Company and its Subsidiaries and, at the expense of Parent, to provide any ~~Debt~~ necessary "comfort letters" in connection with the Financing ~~Agreement or~~ and (B) appropriate officers to sign any customary management representation letters to its independent accountants and (v) solicit and cause to be delivered such certificates, affidavits and instruments (including affidavits of title, survey affidavits, estoppel certificates and lien waivers), legal opinions and other ~~party to the Debt Commitment Letter or any Debt Financing Agreement if~~documents, in ~~the case of this clause (B)~~each case, ~~such breach or default would reasonably~~ as may be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by Parent or reasonably required by any Lender or title insurance company and, in each case, at the ~~Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any~~ expense of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt FinancingParent. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default underIn addition, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with obtaining the ~~transactions contemplated by this Agreement~~Financing, ~~(x) the proceeds of~~ at such ~~debt offerings or other incurrences have been received~~ time as requested by Parent ~~in cash~~and Acquisition Sub, ~~(y) Parent promptly notifies~~ the Company shall (i) commence a cash tender offer (the "Debt Offer") to purchase any and all of ~~such substitution and reduction~~ the Senior Notes and (zii) ~~true, correct and complete copies~~ solicit the consent of ~~each material amendment or modification~~ the holders of the Senior Notes regarding certain amendments (the "Indenture Amendments") to the ~~Debt Commitment Letter relating thereto will be promptly provided to~~ covenants contained in the ~~Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence~~Indenture, ~~the obligations~~ dated as of March 12, 1992, by and between the Company and ~~its Subsidiaries pursuant~~ First Trust National Association, as trustee. Such offer to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash purchase and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” consent solicitation shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full made in accordance with the ~~Company Credit Agreement~~written terms and conditions provided, ~~subject~~ from time to ~~compliance with Section 6.14(a)(iii). (f) Notwithstanding anything~~ time, by Parent to the ~~contrary contained herein~~Company and Applicable Law; provided, that, in any event, the parties agree that the terms and conditions of the Debt Offer and Indenture Amendments shall provide that the closing and effectiveness, respectively, thereof shall be contingent upon the Closing of the Merger. The Company shall not, without Parent~~’s obligations hereunder are not subject~~ 's and Acquisition Sub's prior consent, waive any condition to ~~a condition regarding Parent’s or any of its Affiliates’ obtaining funds~~ the Debt Offer described in the written terms and conditions provided by Parent to ~~consummate~~ the ~~Merger and the transactions contemplated by this Agreement~~Company from time to time.

Appears in 1 contract

Sources: Merger Agreement (Shopko Stores Inc)

Common use of Financing Clause in Contracts