Financing. (a) As of the date hereof, Purchaser has delivered to Seller true and correct copies of (i) the executed commitment letter, dated as of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) and the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject to the terms and conditions set forth therein, to lend the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portion, the “Financing”). None of the Financing Commitments has been amended or modified prior to the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, as of the date of this Agreement, no such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect. (b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereof, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated hereby.
Appears in 1 contract
Financing. (a) As of the date hereof, Purchaser has delivered to Seller true and correct copies of (i) the executed commitment letter, dated as of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) and the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject Subject to the terms and conditions set forth therein, to lend the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portion, the “Financing”). None of the Financing Commitments has been amended or modified prior to the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, as of the date of this Agreement, no Super ROI shall use its reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary to obtain the Financing, including using reasonable best efforts, consistent with the terms of the Debt Commitment Letter, to (i) enter into and maintain in effect a definitive loan agreement as and to the extent contemplated by the Debt Commitment Letter, (ii) obtain the Financing on the terms and conditions described in the Debt Commitment Letter, (iii) satisfy, or cause to be satisfied, on a timely basis all conditions to the closing of and funding consistent with the Debt Commitment Letter, and (iv) consummate the Financing at or prior to the Effective Time; provided, that Super ROI may amend or modify the Debt Commitment Letter and related definitive loan agreement so long as (A) the aggregate proceeds of the Financing (as amended or modified), together with cash on hand of Super ROI, Parent, the Company and its Subsidiaries, available lines of credit and other sources of immediately available funds available to Super ROI and Parent, will be sufficient for Super ROI and Parent to pay the Required Amount and (B) such amendment or modification is contemplated (other thanwould not materially prevent, for delay or impede or impair the avoidance ability of doubt, amendments Super ROI and Parent to consummate the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respectTransactions.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, If Super ROI or Parent becomes aware that any portion of the Financing has become, or is reasonably likely to be, unavailable on the terms and conditions contemplated in the Debt Commitment Letter, (A) Super ROI and Parent shall promptly so notify the Company (in the case of the Financing becoming unavailable), and (B) each of Super ROI and Parent shall use its reasonable best efforts to arrange to obtain alternative debt financing from the same or alternate sources, as promptly as practicable following the occurrence of such fee letter may redacted event, on terms and conditions not materially less favorable, in the aggregate, from the standpoint of the Company, to Super ROI and Parent than those contained in the Debt Commitment Letter, in an amount sufficient to consummate the Offer, the Merger and the other Transactions (the “Alternative Financing”), and to enter into new definitive agreements with respect to such Alternative Financing (“Alternative Financing Documents”, together with the Debt Commitment Letter and definitive debt financing agreement substantially on the terms set out in the Debt Commitment Letter, each a “Financing Document”) and Parent shall deliver to the Company as promptly as practicable (and no later than two (2) business days) after such execution, a true and complete copy of each such Alternative Financing Document (except for customary engagement letters). Any reference in this Agreement to economic (A) the “Financing” (as defined in Section 6.05(a)) shall be deemed to include the Alternative Financing and any modification to the Debt Commitment Letter pursuant to this Section 8.09, and (B) the “flexDebt Commitment Letter” termsshall be deemed to include the Debt Commitment Letter to the extent so amended, none restated, supplemented, replaced, substituted or modified (including any Financing Documents to the extent then in effect) .
(c) Neither Super ROI nor Parent shall agree to or permit any amendments or modifications to, or grant any waivers of, any condition or other provision under any Financing Document without the prior written consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed) if such amendments, modifications or waivers would (i) reduce the aggregate amount of the Financing or (ii) impose new or additional conditions to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modifyotherwise expand, amend or expand the conditions to the funding of modify the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereof, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, manner that would reasonably be expected to (A) prevent or materially delay the ability of Parent or Super ROI to consummate the Offer, the Merger and the other Transactions or (B) adversely impact in any material respect the ability of Parent or Super ROI to enforce its rights against the other parties to any Financing Document. Without limiting the generality of the foregoing, neither Parent nor Super ROI shall release or consent to the termination of the obligations of the financing sources under any Financing Document except as expressly contemplated hereby.
(d) Parent and Super ROI shall (i) constitute a default prior to the Closing, give the Company prompt notice (A) upon becoming aware of any breach of any provision of, or termination by any party to, any Financing Document, or (B) upon the receipt of any written notice or other written communication from any person with respect to any threatened breach on the part of SigmaTEK or Purchaser under the threatened termination by any party to any Financing Commitment Documents that would impair the availability of the Financing on the Closing DateDocument, and (ii) constitute a failure to satisfy a condition precedent prior to the availability Effective Time, otherwise keep the Company informed on a reasonably current basis of the Financing on the part status of SigmaTEK or Purchaser or, (iii) Parent and Super ROI’s efforts to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains arrange the Financing or any other financing for or related to any of the transactions contemplated herebyAlternative Financing.
Appears in 1 contract
Financing. (a) As of the date hereof, Purchaser has delivered to Seller true and correct copies of (i) the executed commitment letter, dated as of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) and the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject Subject to the terms and conditions set forth therein, to lend the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portion, the “Financing”). None of the Financing Commitments has been amended or modified prior to the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, as of the date of this Agreement, no such amendment or modification is contemplated Parent shall use its commercially reasonable efforts to obtain the Debt Financing on the terms and conditions (other thanincluding “market flex” provisions) described in the Debt Financing Commitment, for including using its commercially reasonable efforts to (i) comply with its obligations under the avoidance of doubt, amendments to Debt Financing Commitment and any definitive agreements related thereto (the draft credit agreement contemplated thereby, and amendments or joinders to the “Debt Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereofDocuments”), (ii) maintain in effect the Debt Financing Commitment, (iii) negotiate and as of enter into Debt Financing Documents on a timely basis on terms and conditions (including the date of this Agreement the commitments “market flex” provisions) contained in the Debt Financing Commitments have Commitment or otherwise not been withdrawn materially less favorable with respect to conditionality to Parent in the aggregate than those contained in the Debt Financing Commitment, (iv) satisfy on a timely basis all conditions contained in the Debt Financing Commitment that are applicable to Parent and within its control, including the payment of any commitment, engagement or rescinded in any respect.
placement fees required as a condition to the Debt Financing and (bv) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the if all conditions to the funding of Debt Financing Commitment have been satisfied, cause the Commitment Parties to consummate the Debt Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on at or prior to the date hereof. As of the date hereof, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto Closing Date (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing it being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms understood that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains for Parent to obtain the Debt Financing). Parent shall give the Company prompt notice upon having knowledge of any breach by any Commitment Party under the Debt Financing Documents or any termination of any of the Debt Financing Documents. Other than as set forth in this Section 6.16, Parent shall not, without the prior written consent of the Company, amend, modify, supplement or waive any of the conditions or contingencies to funding contained in the Debt Financing Documents or any other financing for provision of, or related remedies under, the Debt Financing Documents (other than in accordance with the “market flex” provisions), in each case to any the extent such amendment, modification, supplement or waiver (i) would reasonably be expected to have the effect of (A) adversely affecting the transactions contemplated hereby.ability of Parent to timely consummate the Merger and other
Appears in 1 contract
Financing. (a) Section 5.7(a) of Parent Disclosure Letter sets forth true and complete copies of (i) an executed equity commitment letter from the Guarantors to provide $132,000,000 (without limiting the provisions of Section 7.9 of this Agreement, as such amount may be increased or decreased so long as such increase or decrease does not cause the representation in Section 5.9 to be untrue) in equity financing (the “Equity Financing”) to Parent and/or Merger Sub (the “Equity Commitment Letter”), (ii) an executed contribution agreement from each Rollover Investor (the “Rollover Contribution Agreements”) pursuant to which, and subject to the terms and conditions of which, the Rollover Investors have committed to contribute to Parent, the Surviving Corporation or a direct Subsidiary of the Surviving Corporation the amount of shares of Company Capital Stock and membership interests in EFS set forth therein and to consummate the transactions contemplated thereby (the “Rollover Investment”), (iii) the executed Receivables Commitment Letter to purchase the EADV Interests pursuant to the Receivables Purchase Agreements in the Receivables Sale Transaction and (iv) the executed debt commitment letters (the “Debt Commitment Letters” and, together with the Equity Commitment Letter, the Rollover Contribution Agreements and the Receivables Commitment Letter, the “Financing Commitments”) from the lenders or purchasers party thereto (the “Lenders”) pursuant to which, and subject to the terms and conditions of which, the Lenders have committed to provide Parent and/or Merger Sub with loans or other funds in an aggregate amount of $189,947,784 (without limiting the provisions of Section 7.9 of this Agreement, as such amount may be increased or decreased so long as such increase or decrease does not cause the representation in Section 5.9 to be untrue) as described therein, the proceeds of which may be used to consummate the Merger and the other transactions contemplated by this Agreement, including the payoff amount and related fees and expenses including the expenses incurred by Parent and Merger Sub in connection with this Agreement and the transactions contemplated by this Agreement (including the Financing) (the “Debt Financing” and, together with the Equity Financing pursuant to the Equity Commitment Letter, the Rollover Investment pursuant to the Rollover Contribution Agreements and the Receivables Sale Transaction pursuant to the Receivables Commitment Letter, the “Financing”). There are no other agreements, side letters or arrangements relating to the Equity Financing, including any syndication thereof, except as set forth in the Equity Commitment Letter.
(b) As of the date hereof, Purchaser each of the Financing Commitments (i) is in full force and effect and has delivered not been withdrawn or terminated or otherwise amended or modified in any respect, and (ii) in the form so delivered, is a legal, valid and binding obligation of Parent and Merger Sub and the other parties thereto, subject to Seller bankruptcy, insolvency, reorganization, moratorium and other applicable Laws relating to or affecting the creditors’ rights generally (including fraudulent conveyance laws) and to general equity principles, including concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief, regardless of whether considered in a proceeding in equity or at law. There are no other Contracts, agreements, side letters, conditions precedent or arrangements relating to or affecting the Financing or the terms thereof, other than as set forth in the Financing Commitments and any related fee or engagement letter (true and correct copies of (i) which have been furnished to the executed commitment letter, dated as of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) and the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed Company; provided that any fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents letters may be redacted as to economic remove fee amounts, percentages and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject to the terms and conditions set forth therein, to lend the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portion, the “Financing”basis points). None of the Financing Commitments has been amended or modified prior to the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, as As of the date of this Agreement, no such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect.
(bi) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereof, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK Parent or Purchaser Merger Sub under the Financing Commitment Documents that would impair the availability any term or condition of the Financing on the Closing DateCommitments, and (ii) constitute a failure neither Parent nor Merger Sub has knowledge of any facts or circumstances that would reasonably be expected to satisfy a condition precedent to the availability result in (1) any of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable not being satisfied or (2) the funding contemplated in the Financing Commitments not being made available to it will not be satisfied Parent and/or Merger Sub in order to consummate the transactions contemplated by this Agreement on the Closing Date. Purchaser affirms that it is not a condition Parent and or Merger Sub have fully paid any and all commitment fees or other fees required by the Financing Commitments to be paid on or before the date of this Agreement. The Financing Commitments contain all of the conditions precedent to the Closing or any obligations of its other obligations under this Agreement that Purchaser obtains the parties thereunder to make the Financing or any other financing for or related available to any of Parent on the transactions contemplated herebyterms therein.
Appears in 1 contract
Financing. (a) As of the date hereof, Purchaser has delivered to Seller true and correct copies of (i) the executed commitment letter, dated as of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) and the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject to the terms and conditions set forth therein, to lend the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portion, the “Financing”). None of the Financing Commitments has been amended or modified prior to From the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability earlier of the FinancingClosing Date and the date this Agreement is terminated in accordance with its terms, andthe Company shall use its reasonable best efforts, and shall cause its Subsidiaries and their respective officers, employees and advisors to use their reasonable best efforts, to provide such reasonable and customary cooperation and information as may be reasonably requested by Parent in connection with satisfying the conditions to, and complying with any obligations of Parent in connection with the preparation and completion of the date Financing to the extent such conditions and obligations are consistent with the terms and conditions of this Agreement, no including Section 6.11(b) through Section 6.11(d) below.
(b) Without limiting the generality of the foregoing provisions of this Section 6.11, such amendment assistance shall include, to the extent reasonably requested by Parent, using reasonable efforts to take the following actions:
(i) furnishing due diligence materials, financial and other pertinent information relating to the Company and its Subsidiaries and its and their businesses (including information to be used in the preparation of rating agency presentations and an information package, prospectus or modification is contemplated (other thanoffering memorandum regarding the business, operations, financial projections and prospects of Parent and the Company and its Subsidiaries customary for the avoidance of doubtFinancing) to Parent, amendments Merger Sub and the Financing Sources to the draft extent reasonably requested by Parent to assist in the preparation of customary prospectus, offering or information documents to be used in connection with the Financing (including in connection with the syndication of a credit agreement contemplated therebyfacility and/or an offering of securities in a registered offering under the Securities Act or in reliance on Rule 144A of the Securities Act or a private placement);
(ii) providing to Parent (A)(x) unaudited consolidated quarterly financial statements of the Company and its Subsidiaries within 45 days after the end of each fiscal quarter of the Company, and amendments or joinders (y) audited annual financial statements of the Company and its Subsidiaries within 75 days after the end of each fiscal year of the Company provided that filings made with the SEC shall be deemed to satisfy the provisions of this Section 6.11(b)(ii), in each case necessary to receive from the Company’s independent auditors customary “comfort” (including “negative assurance comfort”) with respect to the financial information to be included an offering memorandum of the type customarily provided in offerings of debt securities in the context of acquisition financings under Rule 144A of the Securities Act, and (B) for each of the periods set forth in Section 6.11(b)(ii)(A) a reasonably detailed presentation of the financial condition and results of operations of Newsday Holdings LLC and News12 Networks LLC separate from the financial condition and results of operations of the Company and its Subsidiaries, provided that this shall include at a minimum the total assets, total liabilities, indebtedness, operating income and “AOCF” of Newsday Holdings LLC and News12 Networks LLC on a standalone basis;
(iii) assisting in obtaining customary accountants’ comfort letters and accountants’ consents with respect to the consolidated financial statements of the Company and its Subsidiaries from the auditors of the Company, as applicable, in form and substance reasonably satisfactory to the Financing Commitments Sources for use in connection with any Financing;
(iv) participating (including by way of causing management to participate) in a reasonable number of diligence sessions, road shows, drafting sessions, conference calls and meetings with the Financing Sources, rating agencies and prospective lenders/investors/equity co-investors reasonably necessary for any Financing;
(v) facilitating the execution and delivery at the Closing of definitive and ancillary documents required in connection with or reasonably related to the Financing;
(vi) obtaining customary payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of any debt of the Company or its Subsidiaries that Parent desires to payoff, discharge and terminate at Closing or that is otherwise subject to mandatory prepayment (howsoever described) as a result of the consummation of the Merger;
(vii) providing customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders, containing a customary representation that any public-side version of such information does not include material non-public information, solely to add lenders, lead arrangers, bookrunners, syndication agents the extent such information is provided by the Company or similar entities its Subsidiaries;
(viii) providing all documentation and other information about the Company and each of its Subsidiaries as parties thereto who had not executed is reasonably requested in writing by Parent prior to the Closing Date which is in connection with the Financing Commitments as and relates to, and is reasonably required by, applicable “know your customer” and anti-money laundering rules and regulations including the USA PATRIOT Act;
(ix) executing and delivering any pledge and security documents, currency or interest rate hedging agreements and other financing documents on behalf of the date hereof)Company and its Subsidiaries, in each case as may be reasonably requested by the Parent, providing reasonable assistance to Parent for the delivery of any solvency certificates by borrowers under the Financing, facilitating the granting and perfection of security interests in collateral (including releasing any liens on property or assets securing existing debt, conditional on the Closing) and taking such corporate actions as may be reasonably requested by the Parent to permit the consummation of the Financing as promptly as practicable; and
(x) complying with relevant publicity guidelines with respect to the Financing, including refraining from public comment regarding any such Financing without the prior written consent of the Parent, except as may be required by applicable Law.
(c) Notwithstanding the foregoing, neither the Company nor any of its Subsidiaries shall be required to (i) take any action that would subject it to actual or potential liability or conflict with or violate the Company’s or any of its Subsidiaries’ organizational documents (to the extent such conflict or violation cannot be resolved by such entity using its reasonable best efforts to do so) or any applicable U.S. or foreign Laws or result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any material Contract existing on the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser the Company or SigmaTEK any of its Subsidiaries is a party that impose conditionsparty, affect the availability of (ii) bear any cost, fee or modify, amend expense or expand the conditions to the funding of the Financing pay any commitment or the transactions contemplated hereby other similar fee or make any other payment (other than as expressly set forth in the Financing Commitments delivered reasonable out-of-pocket costs) or incur any other liability or obligation or provide or agree to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid provide any and all commitment fees or other fees indemnity in connection with the Financing Commitments that are payable on or any of the foregoing prior to the date hereof. As Effective Time or (iii) undertake any action that would unreasonably and materially interfere with the business or operations of the date hereofCompany and its Subsidiaries. Parent 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 this Section 6.11.
(d) None of the Company or its Subsidiaries or their respective Representatives shall be required to execute or enter into or perform any agreement with respect to the Financing Commitments are in full force and effect with respect to, and are that is not contingent upon the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may Closing or that would be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller effective prior to the date hereof. As Closing and no directors of the Company shall be required to execute or enter into or perform any agreement with respect to the Financing.
(e) Each of Parent and Merger Sub agrees that, between the date hereofof this Agreement and the earlier of the Effective Time and the termination of this Agreement in accordance with Article VIII, no event has occurred whichit shall not, and it shall cause each of its Affiliates not to, directly or indirectly, take any action with respect to the Financing that would, or without notice, lapse of time or both, would reasonably be expected to, individually or in the aggregate, cause Parent to fail to have funds at Closing sufficient to enable Parent to pay all amounts required to be paid by Parent or Merger Sub in cash in connection with the Merger and the Transactions, including, without duplication, in respect of the aggregate Per Share Merger Consideration pursuant to Section 4.1 of this Agreement, the Company Equity Awards and the Company Cash Performance Awards pursuant to Section 4.3 of this Agreement, repayment of any outstanding indebtedness required to be repaid in order to consummate the Merger and the Transaction and any fees and expenses required to be paid by Parent, Merger Sub or the Surviving Corporation in connection with the Merger and the Transactions.
(if) constitute a default Parent and Merger Sub shall use their respective reasonable best efforts to take, or breach on cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange, maintain the part effectiveness of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of and consummate the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK terms and conditions described in or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable Agreements (including complying with any request to it will exercise so-called “flex” provisions and using reasonable best efforts to satisfy on a timely basis all conditions to funding in the Financing Agreements) in such amount which, when taken together with Parent’s and Merger Sub’s cash on hand, would be no less than the amount that would be required to be paid by Parent or Merger Sub in cash in connection with the Merger and the Transactions, including, without duplication, in respect of the aggregate Per Share Merger Consideration pursuant to Section 4.1 of this Agreement, the Company Equity Awards and the Company Cash Performance Awards pursuant to Section 4.3 of this Agreement, repayment of any outstanding indebtedness required to be repaid in order to consummate the Merger and the Transaction and any fees and expenses required to be paid by Parent, Merger Sub or the Surviving Corporation in connection with the Merger and the Transactions. Parent and Merger Sub agree that any definitive underwriting agreement or other agreement executed in connection with the Equity Financing shall require Parent to issue and sell equity at any price above the par value of Parent’s common shares, and Parent and Merger Sub shall not amend, modify or in any way diminish such obligation, whether by amendment, additional agreement or otherwise, until such time as Parent has completed the Equity Financing. In the event that Parent is unable to complete the Debt Financing or the Equity Financing in accordance with this Section 6.11, Parent shall use reasonable best efforts to obtain and consummate alternative financing in an amount that is sufficient to enable Parent to consummate the Merger as promptly as reasonably practicable and, in any event, no later than the Termination Date (and, failing to do so, the Company may forthwith terminate this Agreement to the extent provided in Article VIII).
(g) To the extent reasonably requested by the Company from time to time, Parent shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate the Financing. Parent and Merger Sub shall not (without the prior written consent of the Company) consent or agree to any amendment, supplement, modification or replacement of the Financing Agreements (including cancellation of commitments thereunder except as contemplated in any Financing Agreement upon a funding into escrow) if such amendment, supplement, modification or replacement could reasonably be satisfied on expected to prevent or materially delay the Closing Date. Purchaser affirms that consummation of the Merger and the Transactions; provided that, it is understood and agreed that Parent may amend the Financing Agreements to add lenders, arrangers, bookrunners, agents, managers or other Financing Sources that have not a condition executed the Financing Agreements and amend titles, allocations and the fee arrangements with respect to the Closing existing and additional lenders, arrangers, bookrunners, agents, managers or Financing Sources if any such amendment could not reasonably be expected to prevent or materially delay the consummation of its the Merger and the Transactions.
(h) Promptly following any amendment, supplement or modification of any Financing Agreement made in compliance with the provisions of this Agreement or the entry to any Contract or other documentation evidencing the financing contemplated by any Financing Agreement, Parent shall provide a copy thereof (redacted if necessary where appropriate and customary) to the Company and the term “Financing Agreements” shall mean the Financing Agreements as so amended, supplemented or modified, and any Contract or other documentation evidencing the financing contemplated by any Financing Agreement, and Parent’s obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated herebySection 6.11 shall apply with respect thereto.
Appears in 1 contract
Sources: Merger Agreement (CSC Holdings LLC)
Financing. (a) As of the date hereofPurchaser shall use its reasonable best efforts to take, Purchaser has delivered to Seller true and correct copies of (i) the executed commitment letter, dated as of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) and the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing or cause to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date)taken, as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant all actions and to which the Financing Sources party thereto have committed, subject to the terms and conditions set forth therein, to lend the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portion, the “Financing”). None of the Financing Commitments has been amended or modified prior to the date of this Agreement in any manner that would adversely impact the availability ofdo, or add additional conditions precedent to the availability of the Financing, and, as of the date of this Agreement, no such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing cause to be funded on the Closing Date done, all things necessary, proper or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereof, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected advisable to (i) constitute a default or breach on maintain in effect the part of SigmaTEK or Purchaser under Debt Financing and the Debt Financing Commitment Documents Commitments, (ii) subject to Seller’s compliance with Section 7.14(c), enter into definitive financing agreements with respect to the Debt Financing, so that would impair the availability of the Financing on such agreements are in effect as promptly as practicable but in any event no later than the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) satisfy on a timely basis all conditions applicable to, and within the control of, Purchaser or its Affiliates in such definitive financing agreements and (subject to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions contained in Section 8.1 and the conditions to closing set forth in Sections 8.1the Debt Commitments Letters) consummate the Debt Financing at or prior to the Closing, 8.2 and 8.3(iv) subject to the last sentence of Section 7.14(b), SigmaTEK and enforce its rights under the Debt Financing Commitments. Purchaser have no reason shall keep Seller informed on a reasonably current basis of any material developments in respect of the Financing Commitments. Prior to believe the Closing, Purchaser shall not terminate the Debt Financing Commitments or agree to, or permit, any amendment or modification of, or waiver under, the Financing Commitments or other documentation relating to the Financing that (i) would reduce the aggregate amount of the Debt Financing, including by changing the amount of fees to be paid or original issue discount (other than any market flex provisions) from that contemplated in the Debt Financing Commitments (except to the extent that the amount of the Equity Financing is correspondingly increased or as would not otherwise reasonably be expected to adversely affect Purchaser’s ability to consummate the transactions contemplated by this Agreement), (ii) would impose new or 75 additional conditions, or otherwise expand, amend or modify any of the conditions to the receipt of the Debt Financing to fund the transactions contemplated by this Agreement in a manner adverse to Purchaser or (iii) could reasonably be expected to adversely affect Purchaser’s ability to consummate the transactions contemplated in this Agreement, in each case without the prior written consent of Seller (which consent shall not be unreasonably withheld, conditioned or delayed). In addition, 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 to obtain the Equity Financing, including using reasonable best efforts to (i) maintain in effect the Equity Financing Commitment, (ii) satisfy on a timely basis all conditions applicable to Purchaser in such Equity Financing Commitment that are within its control, (iii) consummate the Equity Financing at or prior to the Closing, and (iv) enforce its rights under the Equity Financing Commitment.
(b) If at any time prior to Closing, notwithstanding the use of reasonable best efforts by Purchaser to satisfy its obligations under Section 7.14(a), any other party to the Debt Financing or the Debt Financing Commitments (or any definitive financing agreement relating thereto) refuses to fund or is unable to fund the Debt Financing, in whole or in part, for any reason, Purchaser shall (i) immediately notify Seller of such refusal or inability and the reasons therefor and (ii) use its reasonable best efforts promptly to arrange for alternative financing to replace the Debt Financing to the extent available in amounts and otherwise on the terms and conditions no less favorable to Purchaser, individually as to economic terms and in the aggregate as to all other terms, than is set forth in the Debt Financing Commitments. The alternative financing (a) shall be sufficient to pay, when added with the Equity Financing, all amounts required to be paid by Purchaser pursuant to Articles II and III and (b) shall not include any more (or more onerous) terms and conditions than those set forth in the Debt Financing Commitments, unless approved by Seller. For the avoidance of doubt, and notwithstanding anything in this Agreement to the contrary, (i) in order to comply with the standard of reasonable best efforts set forth in this Section 7.14, Purchaser and its Affiliates shall not be required to threaten, commence or prosecute any legal proceeding against any lender or other party to any financing contemplated by the Debt Financing Commitments applicable and (ii) in the case of any breach of the obligations of Purchaser set forth in this Section 7.14, Seller’s and its Affiliates’ sole and exclusive rights and remedies shall be Seller’s rights and remedies set forth in Section 9.9.
(c) Seller shall, and shall cause each Purchased Subsidiary and its and their respective representatives to, provide such cooperation (including with respect to it will not timeliness) in connection with the arrangement of the Debt Financing as may be satisfied on reasonably requested by Purchaser, including (i) providing to Purchaser from time to time information regarding the Business and each Purchased Subsidiary and their industry reasonably requested by the lenders providing the Debt Financing and assisting with identification of any portion of such information that constitutes material non-public information and using commercially reasonable efforts to update any such information to the extent contained in an offering document if Seller becomes aware of any new material information, (ii) facilitating and promoting negotiations between Purchaser with the existing senior lenders to Seller, participating in meetings, presentations, road shows, due diligence sessions with prospective lenders and sessions with rating agencies, (iii) assisting with the preparation of materials for rating agency presentations, offering documents, business projections and similar marketing documents required in connection with the Debt Financing, (iv) as promptly as practicable, furnishing Purchaser and its Debt Financing Sources information reasonably requested by any of them in connection with the Debt Financing, 76 including permitting the prospective lenders and Purchaser and any of their agents and representatives to perform field examinations and inventory appraisals required in connection with the Debt Financing, (v) permitting the prospective lenders to evaluate the Business’ and each Purchased Subsidiary’s current assets, cash management and accounting systems, policies and procedures relating thereto for the purposes of establishing collateral arrangements and establishing bank and other accounts in connection with the foregoing, (vi) promptly providing quarterly and monthly financial statements (excluding footnotes) to the extent available and prepared by Seller and each Purchased Subsidiary in the ordinary course of business and (vii) as of the Closing Date. Purchaser affirms , taking all corporate actions necessary to authorize the consummation of the Debt Financing; provided that, notwithstanding anything to the contrary contained in this Section 7.14(c), nothing in this Section 7.14(c) shall require any cooperation to the extent that it is not a condition would (A) require Seller or any Purchased Subsidiary, as applicable, to waive or amend any terms of this Agreement, agree to pay any commitment, financing or other fees or reimburse any expenses with respect to the Debt Financing prior to the Closing Date or (B) require any Purchased Subsidiary or any officer of any Purchased Subsidiary to take any action with respect to the Debt Financing that is not contingent upon the Closing (including the entry into any agreement) or would require the disclosure of information which would reasonably be expected to jeopardize the attorney-client or similar privilege of such Purchased Subsidiary. In connection with the offering materials related to the syndication of the Debt Financing, Seller hereby consents to the use of its other obligations under and each Purchased Subsidiary’s logos, trademarks and service marks. Purchaser shall, upon request by Seller, promptly reimburse Seller for all reasonable and documented out-ofpocket costs and expenses (including reasonable and documented attorney’s fees) incurred by Seller in connection with the cooperation of Seller contemplated by this Agreement that Purchaser obtains Section 7.14(c) and shall indemnify and hold harmless Seller, each Purchased Subsidiary and each of their respective officers, directors, employees, agents, Affiliates and representatives (any such Person, a “Financing Indemnified Party”) from and against any and all Losses suffered or incurred by any of them of any type in connection with the arrangement or consummation of any Debt Financing except with respect to any written information prepared or provided by Seller or any other financing for Financing Indemnified Party or related to the extent such Losses result from the gross negligence or willful misconduct of Seller or any of the transactions contemplated herebyother Financing Indemnified Party.
Appears in 1 contract
Sources: Asset Purchase Agreement (Costa Inc)
Financing. (a) As Landlord shall be entitled to encumber the Hotels or any of them with one or more Authorized Mortgages which is expressly subordinate to this Agreement or in connection with which the date hereof, Purchaser has delivered to Seller true following terms and correct copies of conditions are satisfied:
(i) the executed commitment letterholder of such Authorized Mortgage shall execute and deliver to Manager (Manager agreeing to likewise execute and deliver to such holder) a so-called subordination, dated as of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) non-disturbance and the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject to the terms and conditions set forth therein, to lend the amounts set forth therein, a portion of attornment agreement which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by provide that:
(A) this Agreement and paying Manager’s rights hereunder are subject and subordinate to the related fees and expenses specified herein (such portionAuthorized Mortgage, the lien thereof, the rights of the holder thereof and to any and all advances made thereunder, interest thereon or costs incurred in connection therewith;
(B) so long as this Agreement is in full force and effect, there exists no Manager Event of Default and Owner is not otherwise entitled to terminate this Agreement in its entirety, Manager’s rights (including its rights to receive the Management Fee) under this Agreement shall not be disturbed by reason of such subordination or by reason of foreclosure of such Authorized Mortgage or receipt of deed in lieu of foreclosure;
(C) Manager shall attorn to the holder of the Authorized Mortgage or the purchaser at any such foreclosure or the grantee of any such deed (each, a “FinancingSuccessor Landlord”). None ;
(D) in the event of such attornment, the Financing Commitments has been amended or modified prior to the date terms of this Agreement binding on Landlord and Manager shall continue in full force and effect as a direct agreement between such Successor Landlord and Manager, upon all the terms, conditions and covenants set forth herein, except that the Successor Landlord shall not be (1) bound by any manner that would adversely impact the availability of, or add additional conditions precedent payment to the availability Owner in advance of the Financing, and, as of the date of this Agreement, no such when due; (2) bound by any amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date of this Agreement made after the commitments contained date that Manager first had written notice of such Authorized Mortgage without the consent of the holder thereof, which consent shall not be unreasonably withheld; (3) liable in any way to Manager for any act or omission, neglect or default on the part of Landlord or Owner under this Agreement; (4) obligated to perform any work or improvements to be done by Landlord or Owner or to make any advances except for those advances to be made pursuant to Sections 5.2(c) or 5.3 from and after the date on which such Successor Landlord acquired the Hotel(s); or (5) subject to any counterclaim or setoff which theretofore accrued to Manager against Landlord or Owner;
(E) In the event of a casualty or condemnation affecting any Pledged Hotel which does not result in the Financing Commitments have not been withdrawn termination of this Agreement with respect to such Pledged Hotel, the net insurance proceeds or rescinded in any respectAward shall be applied to the restoration of such Hotel as herein provided; and
(F) Such other terms as are customary for similar agreements.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce In the amount event less than all of the Financing Hotels are to secure loan or other debt secured by an Authorized Mortgage, Owner, at its reasonable cost, shall have the right to cause the Pledged Hotels to be funded on managed by Manager pursuant to a separate management agreement which agreement shall be for a term equal to the Closing Date or adversely affect the conditionality or availability unexpired portion of the Financing contemplated thereby Term and otherwise on substantially the Closing Date)same terms of this Agreement except as otherwise provided herein. In connection with entering into such separate management agreement, as the parties shall make appropriate allocations of Owner’s Priority, amounts in the date hereof there are no side letters Reserve Account, the Working Capital, and any outstanding advances made by Owner, Manager or contracts to which Purchaser or SigmaTEK is a party their respective Affiliates so that impose conditions, affect the availability of or modify, amend or expand the conditions obligations allocable to the funding Hotels subject to such Authorized Mortgage shall not be due from the other Hotels and vice versa. The allocation of Owner’s Priority for each Hotel shall be on such reasonable basis as the Financing or parties may agree. Without the transactions contemplated hereby other than consent of Manager, the holder of any Authorized Mortgage shall have the right to elect to be subject and subordinate to this Agreement, such subordination to be effective upon such terms and conditions as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection such holder may direct which are not inconsistent with the Financing Commitments that provisions hereof and which are payable on or prior reasonably acceptable to the date hereof. As of the date hereof, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated herebyManager.
Appears in 1 contract
Financing. (a) As of the date hereof, Purchaser Parent has delivered to Seller true the Company true, complete and correct copies of (ia) the executed commitment letter, dated as of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) between Parent Table of Contents and the Financing Sources financial institutions party thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, except that the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as fee letter is subject to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Dateredactions further described below), as may be amended or modified in accordance with the terms hereof, collectively, the “Debt Financing Commitments”), pursuant to which the Financing Sources party lenders thereto have committed, subject to the terms and conditions set forth therein, to lend the amounts set forth therein, a portion of which shall be used therein (the “Debt Financing”) for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement Agreement, and paying the related fees and expenses specified herein and the refinancing of certain outstanding indebtedness of the Company and (such portionb) the executed commitment letters, dated as of the date hereof, from each Guarantor (including all exhibits, schedules and annexes thereto, the “Equity Financing Commitment”, and, together with the Debt Financing Commitments, the “Financing Commitments”), pursuant to which each Guarantor has committed, subject to the terms and conditions set forth therein, to invest the cash amounts set forth therein (the “Equity Financing”, and, together with the Debt Financing, the “Financing”). The Equity Financing Commitment provides that the Company is a third-party beneficiary thereof, subject to the terms and conditions set forth therein and herein. None of the Financing Commitments has been amended or modified prior to the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, andAgreement, as of the date of this Agreement, Agreement no such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Debt Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Debt Financing Commitments as of the date hereof), and as of the date of this Agreement the respective commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect.
(b) . Except for fee letters (complete copies of which have been provided to Seller; providedthe Company, howeverwith only fee amounts, that any such fee letter may redacted as to economic and “market flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date(other than any structure flex) and other economic terms redacted), as of the date hereof there are no side letters or contracts Contracts to which Purchaser Parent or SigmaTEK Merger Sub is a party that impose conditions, affect the availability of or modify, amend or expand the conditions related to the funding or investing, as applicable, of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller the Company on or prior to the date hereofhereof and except for any agreements among the Guarantors which do not affect the availability of the Equity Financing. Purchaser and SigmaTEK have Parent has fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereofhereof and Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Closing Date; provided, that any payment due and payable on the Closing Date shall be funded contemporaneously with the Closing and subject to the satisfaction of the other funding conditions in respect of the Financing on the Closing Date. As of the date hereof, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser Parent and SigmaTEK Merger Sub, as the case may be, and, to the knowledge of PurchaserParent and Merger Sub, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity))thereto. As of the date hereof, there There are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents Commitments delivered to Seller the Company on or prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK Parent or Purchaser Merger Sub or, to the knowledge of Parent or Merger Sub, any other party thereto under the Financing Commitment Documents that would impair the availability any of the Financing on the Closing DateCommitments, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK Parent or Purchaser or, Merger Sub or any other party thereto under the Financing Commitments or (iii) to the knowledge of Purchaser, result in any portion of the Financing Commitments being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy Parent has Table of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have Contents no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied or that the Financing will not be made available to Parent on the Closing Date. Purchaser Assuming the Financing is funded in accordance with the Financing Commitments and the accuracy of the representations and warranties set forth in Section 3.3, Parent and Merger Sub will have on the Closing Date funds sufficient to (A) pay the aggregate Per Share Merger Consideration and the other payments under Article II, (B) pay any and all fees and expenses required to be paid by Parent, Merger Sub and the Surviving Corporation in connection with the Merger and the Financing, (C) pay for any refinancing of any outstanding indebtedness of the Company or its subsidiaries contemplated by this Agreement or the Financing Commitments and (D) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder. Each of Parent and Merger Sub affirms that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains Parent or Merger Sub obtain the Financing or any other financing for or related to any of the transactions contemplated hereby.
Appears in 1 contract
Financing. (a) As of the date hereof, Purchaser has Parent and Merger Sub have delivered to Seller the Company a true and correct copies complete copy of (i) the an executed commitment letterletter dated January 18, dated 2013 from Silicon Valley Bank and Royal Bank of Canada, as of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) and the Financing Sources thereto (including all exhibits, schedules, and annexes theretoco-lead arrangers, and the executed fee letter associated therewith and referenced therein lenders party thereto (collectively, as the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as same may be amended or modified and replaced in accordance with the terms hereofSection 6.17 (Financing), collectively, the “Financing CommitmentsDebt Commitment Letter”), pursuant to which the Financing Sources lender party thereto has committed, subject to the terms and conditions thereof, to lend up to $85,000,000 (the “Debt Financing”) for the purpose of funding the transactions contemplated by this Agreement. Parent and Merger Sub have delivered to the Company true and complete copies of an executed commitment letter (the “Equity Commitment Letter” and together with the Debt Commitment Letter, the “Financing Commitments”) from Oak Hill Capital Partners III L.P. and Oak Hill Capital Management Partners III L.P. (the “Investors”) pursuant to which the Investors have committed, subject to the terms and conditions set forth thereinthereof, to lend invest up to $24,500,000 (the amounts set forth therein, a portion of which shall be used for “Equity Financing” and together with the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portionDebt Financing, the “Financing”). None of the Financing Commitments has been amended or modified prior to the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, as of the date of this Agreement, no such amendment or modification is contemplated .
(other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as b) As of the date hereof), and as of the date of this Agreement the commitments contained in the Financing Commitments have not been amended or modified in any respect and have not been terminated, withdrawn or rescinded in any respect.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as . As of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditionshereof, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have Parent has fully paid any and all commitment fees or other fees in connection with the Financing Commitments that have been incurred and are due and payable on or prior to the date hereofhereof in connection with the Financing Commitments. As No Event of Default (as defined in the Existing Credit Agreement) arising from a breach of Section 8.1(a) of the Existing Credit Agreement, Section 8.1(c) of the Existing Credit Agreement (but only with respect to Section 7.1 of the Existing Credit Agreement) or Section 8.1(f) of the Existing Credit Agreement (any such Event of Default a “Financing Event of Default”) has occurred and is continuing as of the date of this Agreement nor does Parent have Knowledge, as of the date hereof, that any such Financing Event of Default will occur. “Existing Credit Agreement” shall mean the Financing Commitments are in full force Amended and effect with respect toRestated $55,000,000 Senior Secured Credit Facilities Credit Agreement, dated as of May 31, 2011, as amended by, among others, ▇▇▇▇▇▇▇▇▇▇.▇▇▇. Inc., Intermedia Holdings, Inc. and the lenders party thereto, Silicon Valley Bank, as administrative agent and issuing lender, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated herebyagents named therein.
Appears in 1 contract
Sources: Merger Agreement (Telanetix,Inc)
Financing. (a) As Immediately following the execution and delivery by the parties of this Agreement, the date hereof, Purchaser has delivered to Seller true and correct copies of Company shall enter into a credit facility (i) the executed commitment letter, dated as of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEKCredit Facility”) and the Financing Sources thereto (including all exhibitson terms that have been agreed to by Parent, schedules, and annexes theretoMerger Sub, and the executed fee letter associated therewith and referenced therein Company, which Credit Facility shall provide for a $10,750,000 term loan (collectivelythe “Merger Loan”). Subject to the Merger becoming effective, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount proceeds of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject to the terms and conditions set forth therein, to lend the amounts set forth thereinMerger Loan, a portion of which the Company’s available cash on hand, and certain additional funds made available to Merger Sub from Parent shall be used for to fund the purposes of funding the purchase payment of the Purchased Equity Aggregate Merger Consideration and Expenses incident to this Agreement and the transactions contemplated hereby.
(b) The Company agrees to provide reasonable cooperation in connection with the arrangement of any financing to be used in connection with the Merger and the other transactions contemplated hereby, including (i) allowing the participation of its officers in meetings or due diligence sessions, and (ii) causing its officers to execute and deliver on behalf of the Company any agreements, documents, or certificates reasonably required in connection with the Credit Facility or, subject to the Merger becoming effective, any financing to be obtained by Parent and Merger Sub to fund the payment of the Aggregate Merger Consideration and Expenses incident to this Agreement and paying the related fees and expenses specified herein (such portiontransactions contemplated hereby. Without limiting the generality of the foregoing, the “Financing”). None of the Financing Commitments has been amended or modified prior Company will use its reasonable best efforts to the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, as of the date of this Agreement, no such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing take all necessary actions to be funded on taken by it to satisfy, at the Closing Date or adversely affect Effective Time, the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there Company’s obligations which are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding borrowing of the Financing or the transactions contemplated hereby other than as expressly Merger Loan set forth in the Financing Commitments delivered Credit Facility.
(c) The Company also agrees to Seller prior allow Parent, Merger Sub, and their respective representatives to participate in discussions and negotiations with the date hereof. Purchaser lender under, and SigmaTEK have fully paid to review and comment on, any and all commitment fees agreements, documents, or other fees certificates required in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereofwith, the Financing Commitments are in full force and effect with respect toCredit Facility.
(d) If the Credit Facility is withdrawn or otherwise unavailable, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of if the other conditions set forth in Sections 8.1to Parent’s and Merger Sub’s obligation to consummate the Merger have nonetheless been satisfied, 8.2 Parent, Merger Sub and 8.3the Company will each use reasonable best efforts, SigmaTEK and Purchaser have no reason will cooperate with each other, to believe arrange alternative financing for the Merger (provided that any of the conditions to the Financing terms thereof are not materially less favorable than those contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated herebyCredit Facility).
Appears in 1 contract
Financing. (a) As of The Purchaser shall use its 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 arrange, obtain and consummate the date hereof, Purchaser has delivered Debt Financing in full at or prior to Seller true the Closing on the terms and correct copies of (i) subject only to the executed commitment letter, dated as of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) and the Financing Sources thereto conditions (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and any “flex” termsprovisions) set forth in the Debt Financing Letters (or on such terms and conditions that are acceptable to the Seller and the Company and the Debt Financing Sources, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Dateso long as such other terms and conditions are not prohibited by Section 6.12(b)), as may be amended or modified including using reasonable best efforts to: (1) maintain the Debt Financing Letters in full force and effect in accordance with the terms hereofand subject only to the conditions thereof, collectively(2) comply with and perform the obligations applicable to it pursuant to the Debt Financing Letters (including, to the extent exercised, any “Financing Commitments”flex” provisions), pursuant to which (3) cause the Financing Sources party thereto have committed, subject to the terms and conditions set forth therein, to lend the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portion, the “Financing”). None of the Debt Financing Commitments has been amended at or modified prior to the date of this Agreement in any manner that Closing, including by enforcing Purchaser’s rights under the Debt Financing Letters, (4) comply with its obligations under the Debt Financing Letters, to the extent the failure to comply with such obligations would adversely impact the availability of, amount or add additional conditions precedent to the availability of the FinancingDebt Financing at the Closing, and, as of the date of this Agreement, no such amendment or modification is contemplated and (other than, for the avoidance of doubt, amendments 5) satisfy on a timely basis all conditions in all Debt Financing Agreements to the draft credit agreement contemplated therebyextent within Purchaser’s, any of its Subsidiaries’ or any of their respective Representatives’ or Affiliates’ control and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date of this Agreement the commitments contained assist in the Financing Commitments have not been withdrawn or rescinded in any respectsatisfaction of all other conditions.
(b) Except for fee letters The Purchaser shall not withdraw, rescind, terminate (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” other than in accordance with its terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modifyreplace, amend or expand waive the conditions to Debt Financing Letters or any provision thereof without the Seller’s prior written consent if such termination, replacement, amendment or waiver would reasonably be expected to, when taken together with all other such amendments, modifications and waivers: (1) delay, impede or prevent the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereof, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Debt Financing on the Closing Date, (ii2) constitute a failure to satisfy a condition precedent to adversely impact (x) the availability ability of the Purchaser to enforce its rights against the Debt Financing on Sources under the part of SigmaTEK Debt Financing Agreements or Purchaser or, (iiiy) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As ability of the date hereofPurchaser to consummate, assuming or the accuracy likelihood of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfiedconsummation of, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated hereby.
Appears in 1 contract
Financing. (a) As of the date hereof, Purchaser Parent has delivered to Seller true Company a true, correct and correct copies complete copy of (ithe fully executed debt commitment letter(s) and the executed commitment letterfee letter(s), dated as of the date hereof, among Purchaser, SigmaTEK Systems, LLC hereof (“SigmaTEK”) and the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Debt Financing Commitment DocumentsCommitment”) (providedin the case of the fee letter(s), howeverredacted form removing commercially sensitive information therein, that such Financing Commitment Documents may be redacted as to economic including the fee information and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”provisions), pursuant to which the Debt Financing Sources party thereto have committedcommitted to Parent and/or its Affiliates, subject to the terms and conditions set forth therein, to lend provide or cause to be provided the debt amounts set forth therein, a portion of which shall be used therein for the purposes purpose, among others, of funding financing the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein to be incurred by Parent and/or its Affiliates in connection therewith and for the other purposes set forth therein (such portion, the “Debt Financing”, which may also include certain actions to be taken under and in connection with the Existing Credit Agreement). None of the Financing Commitments has been amended or modified prior to the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, as of the date of this Agreement, no such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as As of the date hereof, the Debt Financing Commitment is valid and in full force and effect, has not been amended, modified or waived, no such amendment, modification or waiver is pending or contemplated (except for amendments to add additional financing sources thereto in accordance with the Debt Financing Commitment), and as of the date of this Agreement the commitments contained in the Debt Financing Commitments have Commitment has not been withdrawn withdrawn, terminated or rescinded in any respect.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing . Parent has fully paid or caused to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees required to be paid in connection with the Debt Financing Commitments Commitment that are payable on or prior to the date hereof. As of The Debt Financing Commitment, in the date hereofform so delivered, the Financing Commitments are in full force and effect with respect tois a valid, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK obligation of Parent and, to the knowledge of PurchaserParent, each of the other parties thereto (exceptthereto, in each case, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, Enforceability Exceptions. Assuming the truth and general principles of equity (regardless of whether such enforceability is considered correctness in a proceeding in Law or equity)). As all material respects of the date hereofCompany’s representations and warranties made hereunder, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK Parent or Purchaser to the Knowledge of Parent, any other parties thereto, under the Debt Financing Commitment Documents that would impair Commitment, or a failure of any condition to the availability Debt Financing or otherwise result in any portion of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Debt Financing being unavailable on the Closing Date. Assuming the truth and correctness of the Company’s representations and warranties hereunder, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser Parent does not have no any reason to believe that any of the conditions to the Debt Financing contemplated by the Financing Commitments applicable will fail to it will not timely be satisfied or that the full amount of the Debt Financing will be unavailable on the Closing DateDate (taking into account the Marketing Period). Purchaser affirms that it As of the date of this Agreement, Parent is not a condition to the Closing aware of any fact, event or any of its other obligations under this Agreement occurrence that Purchaser obtains the Financing or any other financing for or related to makes any of the transactions contemplated herebyrepresentations or warranties of Parent in the Debt Financing Commitment misleading or inaccurate in any material respect. The Debt Financing Commitment is not subject to any conditions precedent to the obligations of the parties thereunder (including with respect to the Debt Financing Commitment, pursuant to any “flex” provisions in the related fee letter) to make the full amount of the Debt Financing available to Parent at the Closing other than as set forth therein (including the payment of customary fees). The Debt Financing (both before and after giving effect to any “flex” provisions contained in the Debt Financing Commitment), will be sufficient for Parent to pay the Aggregate Merger Consideration (less the Aggregate Parent Stock Value and less the Aggregate Exercise Price), the Payoff Amount and the Selling Expenses.
Appears in 1 contract
Sources: Merger Agreement (AdaptHealth Corp.)
Financing. Merger Co. has previously delivered to the Company the following: (a) As of the date hereof, Purchaser has delivered to Seller true and correct copies of (i) the a fully executed commitment letterletter (the "Senior Debt Letter") from the Chase Manhattan Bank, dated as of the date hereofDLJ Capital Funding, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) Inc. and the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein First Union National Bank (collectively, the “Financing Commitment Documents”"Banks") (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce accepted by ▇▇▇▇▇ & Company and the amount of Company providing the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject to the detailed terms and conditions set forth therein, upon which the Banks have committed to lend provide the amounts set forth therein, a entire senior debt and revolving credit portion of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portion, the “Financing”). None of the Financing Commitments has been amended or modified prior to the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, as of the date of this Agreement, no such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees financing required in connection with the Financing Commitments that are payable on or prior Merger, (b) a fully executed commitment letter (the "Subordinated Debt Letter") issued by DLJ Bridge Finance, Inc., ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation, The Chase Manhattan Bank, Chase Securities Inc. and First Union National Bank (collectively, the "Bridge Lenders") and accepted by ▇▇▇▇▇ & Company and the Company, providing the detailed terms and conditions upon which the Bridge Lenders have committed to provide and place the date hereof. As subordinated debt portion of the date hereoffinancing required in connection with the Merger and (c) the executed Equity Commitment Letter (together with the Senior Debt Letter and the Subordinated Debt Letter, the "Financing Commitments are Letters). Each of the Financing Letters is in full force and effect with respect toon the date of this Amendment hereto and has not been amended or modified, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto there is no breach or default existing (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law which with notice or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (iotherwise may exist) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability thereunder. The aggregate proceeds of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated financing completed by the Financing Commitments applicable Letters are sufficient to it will pay the cash portion of the Merger Consideration, to repay the existing indebtedness of the Company and its subsidiaries (excluding any indebtedness the parties hereto agree shall not be satisfied on the Closing Date. Purchaser affirms that it is not a condition repaid) and to the Closing or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or pay all fees and expenses to be paid by Merger Co. related to any of the transactions contemplated herebyby this Agreement."
9. Amendment to Section 5.01. Section 5.01 of the Merger Agreement ------------------------- is hereby amended by adding the following to the end thereof:
Appears in 1 contract
Sources: Agreement and Plan of Merger and Recapitalization (Citation Corp /Al/)
Financing. (a) As of the date hereof, Purchaser Parent has delivered to Seller true the Company complete and correct copies of (i) the a fully executed commitment letterletter (the “Debt Commitment Letter”), dated from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc. (together, the “Senior Lenders”), pursuant to which such financial institutions have committed, upon the terms and subject to the conditions set forth therein, to provide credit facilities in the amount of $200 million in connection with the transactions contemplated by this Agreement and (ii) a fully executed commitment letter from FP-Metrologic, LLC (the “Equity Commitment Letter”), pursuant to which FP-Metrologic, LLC has committed, upon the terms and subject to the conditions set forth therein, to provide equity financing in the aggregate amount of up to $153 million in connection with the transactions contemplated by this Agreement. The Debt Commitment Letter and the Equity Commitment Letter are hereinafter referred to collectively as the “Commitment Letters.”
(b) As of the date hereof: (i) the Commitment Letters are in full force and effect; (ii) all commitment fees required to be paid thereunder will be duly paid by Parent in full when due; (iii) the Commitment Letters have not been amended or terminated; and (iv) excluding any breach caused by the Company or its Subsidiaries, there is no breach existing thereunder. Parent has not, as of the date hereof, among Purchaserbeen informed by the Senior Lenders of any fact, SigmaTEK Systems, LLC (“SigmaTEK”) occurrence or condition unrelated to the Company that would cause the financing contemplated by the Debt Commitment Letter to not be consummated as contemplated therein. Assuming that the representations and the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount warranties of the Financing to be funded on Company in this Agreement are true and correct and that the Closing Date or adversely affect the conditionality or availability Rollover Investors contribute their shares of the Financing contemplated thereby on the Closing Date), as may be amended or modified Company Common Stock in accordance with the terms hereof, collectivelyof the Contribution Agreements, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject to the terms and conditions set forth therein, to lend the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions aggregate proceeds contemplated by this Agreement the Commitment Letters, if and paying the related fees and expenses specified herein (such portion, the “Financing”). None of the Financing Commitments has been amended or modified when funded immediately prior to the date of this Agreement Effective Time in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, as of the date of this Agreement, no such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection accordance with the Financing Commitments that are payable on or prior to Commitment Letters, together with the date hereof. As of the date hereof, the Financing Commitments are available unrestricted cash and fully liquid cash equivalents in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full an amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, (ii) constitute a failure sufficient to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied7.2(g), will be sufficient for Parent and the Surviving Corporation after Closing to pay the aggregate Merger Consideration, the performance by Seller aggregate consideration to be paid to holders of its obligations under this Agreement Company Stock Options pursuant to Section 2.3 hereof and the satisfaction of the other conditions set forth fees and expenses incurred in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of connection with the transactions contemplated hereby.
(c) Parent has not, as of the date hereof, been informed by the Senior Lenders of any fact, occurrence or condition that makes any of the assumptions or statements set forth in the Debt Commitment Letter inaccurate in any material respect or that would cause the commitments provided in the Debt Commitment Letter to be terminated or ineffective or any of the conditions contained therein not to be met.
(d) The equity investment under the Equity Commitment Letter is not subject to any condition other than as set forth therein.
Appears in 1 contract
Financing. (a) As of the date hereof, Purchaser has delivered to Seller true and correct copies of (i) the executed commitment letter, dated as of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) and the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject Subject to the terms and conditions of this Agreement, each of Parent and HospitalCo Parent shall use its reasonable best efforts to arrange the Debt Financing on terms and conditions not less favorable to Parent or HospitalCo Parent (as applicable) as those described in the respective Debt Commitment Letter (including any “market flex” provisions contained in the respective Fee Letters) and, other than as set forth thereinin this Section 7.15, shall not permit any amendment, supplement or modification to lend be made to, or any waiver of any provision or remedy under, the amounts set forth therein, a Debt Commitment Letters (including any replacement of all or any portion of which shall be used for any facilities or commitments thereof described therein), if and to the purposes of funding extent such amendment, supplement, modification, replacement or waiver (i) reduces the purchase aggregate amount of the Purchased Equity and Debt Financing (including by changing the other amount of fees to be paid or original issue discount except by operation of the “market flex” provisions contained in the Fee Letters) such that Parent or HospitalCo Parent (as applicable) would not have sufficient cash proceeds to consummate the transactions contemplated by this Agreement and paying the related fees Separation Agreement on the Closing Date, and expenses specified herein (such portion, the “Financing”). None payment of the Required Amounts, (ii) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of any portion of the Debt Financing Commitments has been amended or modified prior (iii) would or would reasonably be expected to (A) materially delay or prevent the Closing or (B) make the funding of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) less likely to occur or (C) would or would reasonably be expected to adversely impact the ability of Parent or HospitalCo Parent, as applicable, to enforce its rights against other parties to the Debt Commitment Letters or the Definitive Agreements (as defined below), in any material respect. Notwithstanding the foregoing, Parent or HospitalCo Parent, as applicable, may amend, supplement or modify the Debt Commitment Letters as in effect at the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, as of the date of this Agreement, no such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and Debt Commitment Letters as of the date of this Agreement. For purposes of this Agreement (other than with respect to any representations made by Parent, HospitalCo Parent or Merger Sub), (x) the commitments contained in terms “Debt Financing,” “Equity Financing” and “Financing” shall be deemed to include the financing contemplated by the applicable Financing Commitments have not been withdrawn as may be amended, supplemented, modified, replaced or rescinded in waived pursuant to this Section 7.15 (including any respectAlternative Financing (as defined below)) and (y) the terms “Debt Commitment Letters,” “Equity Commitment Letters” and “Financing Commitments” shall be deemed to include the applicable Financing Commitments as may be amended, supplemented, modified, replaced or waived pursuant to this Section 7.15 and any commitment letters with respect to any Alternative Financing and any related fee letters.
(b) Except Each of Parent and HospitalCo Parent shall use its reasonable best efforts to (i) maintain in effect the Debt Commitment Letters pursuant to their respective terms (except for fee letters (complete copies of which have been provided to Seller; providedamendments, howeversupplements, that any such fee letter may redacted as to economic and “flex” termsmodifications, none of which would reduce replacements or waivers not prohibited by Section 7.15(a)) until the amount of transactions contemplated by this Agreement, including the Financing to be funded Merger, are consummated on the Closing Date or adversely affect the conditionality Definitive Agreements with respect to such Debt Commitment Letters are entered into, (ii) negotiate and enter into definitive agreements with respect to the Debt Financing on the respective terms and conditions (including any “market flex” provisions applicable thereto) contained in the respective Debt Commitment Letters and Fee Letters (“Definitive Agreements”) or availability on other terms not less favorable to Parent or HospitalCo Parent (as applicable), than the respective terms and conditions (including any “market flex” provisions applicable thereto) contained in the respective Debt Commitment Letters and Fee Letters, (iii) satisfy on a timely basis (taking into account the anticipated timing of the Financing contemplated thereby on Marketing Period) or obtain the Closing Date), as waiver of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the all conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered Debt Commitment Letters applicable to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees Parent or other fees in connection with the Financing Commitments HospitalCo Parent that are payable on within its control and consummate the Debt Financing at or prior to the date hereof. As Closing and (iv) enforce their rights under the Debt Commitment Letters in the event of a breach by any party thereto.
(c) Without limiting the generality of the date hereof, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaserforegoing, each of Parent or HospitalCo Parent (as applicable) shall give the other parties thereto Company reasonably prompt notice: (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium i) of any breach or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity default (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent any event or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred whichcircumstance 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 the respective Debt Commitment Letters or any respective Definitive Agreement of which they become aware; (ii) of the receipt of any written notice or other written communication from any Financing Source with respect to any actual or threatened breach, default, termination or repudiation by any party to the respective Debt Commitment Letters or any Definitive Agreement or any provisions thereof and (iii) if for any reason Parent or HospitalCo Parent (as applicable) believes in good faith that they will not be able to obtain all or any portion of the Debt Financing on the terms, in the manner or from the sources contemplated by the respective Debt Commitment Letters or the respective Definitive Agreements. Each of Parent and HospitalCo Parent shall keep the Company informed upon request on a reasonable basis and in reasonable detail of the status of its efforts to arrange the Debt Financing and provide to the Company copies of all Definitive Agreements related to the Debt Financing (including copies of any amendment to or modification of the Debt Commitment Letters or Fee Letters (other than with respect to redacted fees, fee amounts, pricing terms and pricing caps and other economic terms, but which redacted information does not relate to the amount or conditionality of the Financing).
(d) In the event any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the applicable Debt Commitment Letter and Fee Letter (including any “market flex” provisions contained in such Fee Letter) (other than due to the failure of a condition to the consummation of the Debt Financing resulting from a breach of any representation, warranty, covenant or agreement of the Company set forth in this Agreement), each of Parent and HospitalCo Parent shall use its reasonable best efforts to, as promptly as practicable following the occurrence of such event, take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to arrange and obtain alternative financing from the same or alternative sources (i) constitute on terms and conditions not less favorable to Parent or HospitalCo Parent (as applicable) than those contemplated in the applicable Debt Commitment Letter and Fee Letter (including any “market flex” provisions contained in such Fee Letter), (ii) with conditions to the funding of such alternative financing not more onerous, taken as a default or breach on whole, than those conditions and terms contained in the part of SigmaTEK or Purchaser under the Debt Financing Commitment Documents that would impair the availability Commitments as of the Financing date of this Agreement and (iii) in an aggregate amount, together with other portions of the financing that remain available to Parent and HospitalCo Parent, sufficient to consummate the transactions contemplated by this Agreement and the Separation Agreement on the Closing Date, and the payment of the Required Amounts (such alternative financing, the “Alternative Financing”). Parent or HospitalCo Parent (as applicable) shall reasonably promptly deliver to the Company true and complete copies of all agreements pursuant to which any such Alternate Financing shall be made available to Parent or HospitalCo Parent (as applicable) (provided, that the existence and/or amount of fees, pricing terms and pricing caps and other economic terms set forth in any such agreement may be redacted).
(e) The Company shall, and shall cause its Affiliates to, use reasonable best efforts to cause its and their respective personnel and Representatives (including legal and accounting representatives) to provide all cooperation reasonably requested by Parent or HospitalCo Parent in connection with the arrangement of Debt Financing, including:
(i) using reasonable best efforts to furnish Parent, HospitalCo Parent, as applicable, and the applicable Financing Sources, as promptly as practicable, with (1) the audited combined balance sheet of the Homecare Business as of and for the fiscal years ended December 31, 2015 and December 31, 2016 and for the most recently completed fiscal year of the Company ended at least 90 days prior to the Closing Date and the related combined statements of operations, comprehensive income and cash flows for the fiscal years ended December 31, 2015 and December 31, 2016 and for the most recently completed fiscal year of the Company ended at least 90 days prior to the Closing Date (collectively, the “Homecare Audited Financial Statements”), (2) the audited combined balance sheet of the Hospital Business as of and for the fiscal years ended December 31, 2015 and December 31, 2016 and for the most recently completed fiscal year of the Company ended at least 90 days prior to the Closing Date and the related combined statements of operations, comprehensive income and cash flows for the fiscal years ended December 31, 2015 and December 31, 2016 and for the most recently completed fiscal year of the Company ended at least 90 days prior to the Closing Date (collectively, the “Hospital Audited Financial Statements”), (3) the unaudited combined balance sheets and related statements of operations, comprehensive income and cash flows of the Homecare Business for any subsequent fiscal quarter ended at least 45 days prior to the Closing Date and, in each case, for the comparable period of the prior fiscal year (collectively, the “Homecare Unaudited Financial Statements”), and (4) the unaudited combined balance sheets and related statements of operations, comprehensive income and cash flows of the Hospital Business for any subsequent fiscal quarter ended at least 45 days prior to the Closing Date and, in each case, for the comparable period of the prior fiscal year (collectively, the “Hospital Unaudited Financial Statements”), in the case of each of clauses (1) through (4) above, prepared in accordance with GAAP;
(ii) constitute a failure using reasonable best efforts to satisfy a condition precedent furnish Parent or HospitalCo Parent, as applicable and the applicable Financing Sources, as promptly as practicable, with the necessary financial information and historical financial data relating to the availability Homecare Business and the Hospital Business, as applicable, to enable Parent and HospitalCo Parent, as applicable, to produce (or cause to be produced) (1) an unaudited pro forma combined balance sheet and a related unaudited pro forma combined statements of operations and comprehensive income of the Financing Homecare Business as of and for the twelve-month period ending on the part last day of SigmaTEK or Purchaser the most recently completed four-fiscal quarter period ended at least 45 days before the Closing Date (or, if the end of the most recently completed four-fiscal quarter period of the Company is the end of a fiscal year of the Company, ended at least 90 days before the Closing Date), prepared after giving effect to the Transactions contemplated hereunder and pursuant to the Separation Agreement as if the 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 operations and comprehensive income), which need not be prepared in compliance with Regulation S-X under the Securities Act or include adjustments for purchase accounting, in each case to the extent customary for senior secured bank financing transactions of the type contemplated by the HomecareCo Debt Commitment Letter (it being understood that Parent shall be responsible for any post-Closing or pro forma cost savings, capitalization, ownership or other pro forma adjustments desired by Parent to be incorporated therein) and (2) an unaudited pro forma combined balance sheet and related unaudited pro forma combined statements of operations and comprehensive income of the Hospital Business as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 days before the Closing Date (or, if the end of the most recently completed four-fiscal quarter period of the Company is the end of a fiscal year of the Company, ended at least 90 days before the Closing Date), prepared after giving effect to the Transactions contemplated hereunder and pursuant to the Separation Agreement as if the 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 operations and comprehensive income), which need not be prepared in compliance with Regulation S-X under the Securities Act or include adjustments for purchase accounting, in each case to the extent customary for senior secured bank financing transactions of the type contemplated by the HospitalCo Debt Commitment Letter (it being understood that HospitalCo Parent shall be responsible for any pro forma calculations and any post-Closing or pro forma cost savings, capitalization, ownership or other pro forma adjustments desired by HospitalCo Parent to be incorporated therein);
(iii) using reasonable best efforts to promptly furnish all other information as may be reasonably requested by Parent, HospitalCo Parent or the Financing Sources and their respective agents to prepare, and assist Parent, HospitalCo Parent, the Financing Sources and their respective agents with preparation of, customary bank information memoranda, lender presentations, syndication memoranda, offering memoranda, private placement memoranda and/or other customary marketing or offering materials or memoranda required in connection with such Financing, to the knowledge extent such information or assistance relates to the business, financial performance or financial condition of Purchaserthe Company and its Subsidiaries (including the Homecare Business and/or the Hospital Business) and rating agency presentations, result in the Financing being unavailable on the Closing Date, so long as the conditions including business and financial projections reasonably requested by Parent or HospitalCo Parent;
(iv) using reasonable best efforts to provide customary authorization letters to the Financing are satisfied Sources authorizing the distribution of information to prospective lenders (including customary 10b-5 and each condition set forth in Section 8.2 is satisfied. As material non-public information representations);
(v) at the reasonable request of Parent or HospitalCo Parent, and subject to the consent of the date hereofCompany (which consent shall not be unreasonably withheld, assuming conditioned or delayed), using reasonable best efforts to file a Form 8-K with the accuracy SEC disclosing information identified by Parent or HospitalCo Parent relating to the Company and its Subsidiaries (including the Homecare Business and/or the Specialty Hospital Business) for purposes of permitting such information to be included in marketing or offering materials or memoranda for the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfiedDebt Financing to be provided to potential investors who do not wish to receive material nonpublic information with respect to any of Parent, HospitalCo Parent, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1Company, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing their respective Affiliates or any of its other obligations under this Agreement that Purchaser obtains their respective securities;
(vi) using reasonable best efforts to assist in preparation for and participate (including by making members of senior management with appropriate seniority and expertise available to participate) in a reasonable number of meetings, due diligence sessions, presentations, “road shows”, drafting sessions and sessions with the rating agencies in connection with the Debt Financing;
(vii) using reasonable best efforts to reasonably cooperate with the Financing or any other financing for or related Sources’ and their respective agents’ due diligence, including by granting reasonable access to any of the transactions contemplated hereby.documentation reasonably requested by Persons in connection with capital markets transactions;
(viii) using reasonable best efforts to cooperate with Parent and Hos
Appears in 1 contract
Sources: Agreement and Plan of Merger (Kindred Healthcare, Inc)
Financing. (a) As of the date hereof, Purchaser Buyer has delivered to Seller the Company a true and correct copies complete copy of the Bank Commitment Letter, which when combined with the equity to be contributed to Buyer by its members will be sufficient to allow Buyer (i) to pay in full all payments to be made in connection with the Merger (including the purchase of the Series A Preferred Stock) and the other transactions contemplated hereby, (ii) to refinance and retire all outstanding indebtedness of the Company at the Effective Time under (A) the Credit Agreement, dated June 25, 1998, among American Cellular Wireless LLC, as borrower, certain guarantors, arrangers and agents signatory thereto, the lenders party thereto and Toronto Dominion (Texas), Inc., as administrative agent for the lenders (as amended, supplemented or modified from time to time, the "BANK CREDIT FACILITY"), and (B) the 10 1/2% Senior Notes due 2008 issued by the Company pursuant to the Indenture, dated as of May 13, 1998, between the Company and Chase Manhattan Bank and Trust Company, National Association, as trustee (the "SENIOR NOTES"), and (iii) to satisfy all Transaction Fees and Expenses and all other costs arising in connection therewith. The financing to be provided under the Bank Commitment Letter (or such other financing as Buyer may arrange with a bank or institutional lender having capital and surplus in excess of $3.0 billion and a Thomson Bank Watch Rating of "B" or better (any such bank or institutional lender is referred to herein as the "BANK") that is on terms and conditions that are no less favorable to Buyer than those contained in the Bank Commitment Letter) is referred to in this Agreement as the "FINANCING."
(b) Buyer agrees to use its commercially reasonable efforts to promptly negotiate and obtain definitive agreements with respect to the Financing upon the terms provided in the Bank Commitment Letter (or such replacement commitment letter that has substantially similar terms as the Bank Commitment Letter and is in any event no less favorable to Buyer than those set forth in the Bank Commitment Letter) (the "DEFINITIVE FINANCING AGREEMENTS") and if such Definitive Financing Agreements are entered into, to consummate the Financing upon satisfaction of (i) the executed commitment letter, dated as of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) and the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject to the terms and conditions set forth therein, to lend in Article V and (ii) the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portion, the “Financing”). None of the Financing Commitments has been amended or modified prior to the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to any extension of credit under the availability Definitive Financing Agreements (other than those conditions which are within Buyer's control which conditions Buyer shall cause to be satisfied). Buyer shall use reasonable commercial efforts to satisfy all requirements of the Financing, and, Bank Commitment Letter (or such replacement commitment letter that has substantially similar terms as of the date of this Agreement, no such amendment or modification Bank Commitment Letter and is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect.
(b) Except for fee letters (complete copies of which have been provided event no less favorable to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other Buyer than as expressly those set forth in the Bank Commitment Letter) and of the Definitive Financing Commitments delivered Agreements which are conditions precedent to Seller prior closing the transactions constituting the Financing and to drawing the cash proceeds thereunder. The Company shall provide such cooperation as is reasonably requested by the Buyer in order to satisfy those conditions to closing the transactions constituting the Financing which are applicable to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereofCompany, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such provided that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will Company shall not be satisfied on the Closing Date. Purchaser affirms that it is not a condition obligated to the Closing or incur any of its other obligations under Expense in order to comply with this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated herebyobligation.
Appears in 1 contract
Financing. (a) As The Financing, when funded in accordance with the Commitment Letter, together with other financial resources of Parent, including cash on hand of Parent, will be sufficient for the date hereofsatisfaction of all of Parent’s obligations under this Agreement including, Purchaser to pay the aggregate consideration payable by Parent on the Closing Date pursuant to Article II, to refinance any indebtedness required to be refinanced in connection with the Merger and to pay all costs, fees and expenses required to be borne by Parent and its Affiliates in connection with this Agreement on the Closing Date. Parent has delivered to Seller true the Company true, complete and correct fully executed copies of (i) the executed commitment letter, dated as of the date hereof, among PurchaserCredit Suisse Securities (USA) LLC and Credit Suisse AG, SigmaTEK SystemsCayman Islands Branch (collectively, LLC (the “SigmaTEKCommitment Parties”) and Parent (the “Commitment Letter”) and (ii) the fee letter, dated as of the date hereof, among the Commitment Parties and Parent (as redacted to remove the fee amounts, alternate transaction fee provisions, pricing caps, the rates and amounts included in the “market flex” that could not adversely affect the availability of or impose any additional conditions on the availability of the Financing, or the conditionality, enforceability or termination of the Financing Sources thereto (as defined below), the “Redacted Fee Letter”), in each case, including all exhibits, schedules, annexes and annexes thereto, and amendments to such letters in effect as of the executed fee letter associated therewith and referenced therein date of this Agreement (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing CommitmentsDebt Letters”), pursuant to which the Financing Sources party thereto have committed, and subject to the terms and conditions set forth therein, thereof each of the parties thereto (other than Parent) have severally committed to lend the amounts set forth therein to Parent (the provision of such funds as set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portion, the “Financing”)) for the purposes set forth in such Debt Letters. None of the Financing Commitments has The Debt Letters have not been amended amended, restated or otherwise modified or waived prior to the date execution and delivery of this Agreement (provided, that the existence or exercise of “market flex” provisions contained in the Redacted Fee Letter shall not be deemed to constitute a modification or amendment of the Commitment Letter), and the respective commitments contained in the Debt Letters, to the Knowledge of Parent, have not been withdrawn, rescinded, amended, restated or otherwise modified in any manner that would adversely impact the availability of, or add additional conditions precedent respect prior to the availability execution and delivery of the Financing, and, as this Agreement. As of the date of this Agreement, no such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereof, the Financing Commitments Debt Letters are in full force and effect with respect to, and are constitute the legal, valid, valid and binding and enforceable obligations of, Purchaser and SigmaTEK obligation of each of Parent and, to the knowledge Knowledge of PurchaserParent, each of the other parties thereto (exceptthereto, subject, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting to the enforcement of creditors’ rights generally, Bankruptcy and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity))Equity Exception. As of the date hereofof this Agreement, there are no conditions precedent or other contingencies related to the funding of the full amount of the FinancingFinancing pursuant to the Debt Letters, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior Debt Letters and, after the date of this Agreement, such other conditions and contingencies with respect to the date hereofFinancing permitted pursuant to Section 4.19. As of the date hereofof this Agreement, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a breach or default or breach on the part of SigmaTEK or Purchaser Parent under the Financing Commitment Documents that would impair Debt Letters or, to the availability Knowledge of Parent, any other party to the Debt Letters (assuming the accuracy of the Financing Acquisition Representations (as defined in the Debt Letter in effect on the Closing Date, (iidate hereof) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfiedundertakings under this Agreement for such purpose). As of the date hereofof this Agreement there are no or side letters or other agreements, assuming Contracts or arrangements related to the accuracy funding of the representations and warranties full amount of the Financing other than as expressly set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, Debt Letters. Parent has fully paid all commitment fees or other fees required to be paid on or prior to the performance by Seller date of its obligations under this Agreement and in connection with the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated herebyFinancing.
Appears in 1 contract
Financing. (a) As Parent and Merger Sub shall use their reasonable best efforts (taking into account the expected timing of the date hereof, Purchaser has delivered Marketing Period) to Seller true arrange and correct copies of consummate the Financing on the terms and conditions described in the Commitment Letters at or prior to the Closing including by: (i) maintaining in effect the executed commitment letterCommitment Letters and negotiating and entering into the definitive agreements with respect to the Debt Financing (the “Definitive Financing Agreements”) on the terms and conditions contained in the Debt Financing Commitments; (ii) satisfying (or, dated if deemed advisable by Parent, seeking the waiver of) on a timely basis all terms, covenants and conditions set forth in the Commitment Letters and the Definitive Financing Agreements applicable to Parent and Merger Sub that are within their control; (iii) upon satisfaction or waiver of all of the conditions precedent under Section 8.1 and in Annex I (except those that, by their nature, are to be satisfied at the Closing, provided that such conditions would be so satisfied as of such date), consummating or causing the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) and the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount consummation of the Financing including, if necessary, by enforcing their rights under the Commitment Letters and the Definitive Financing Agreements; and (iv) otherwise complying with Parent and Merger Sub’s covenants and other obligations under the Commitment Letters and Definitive Financing Agreements. Notwithstanding anything to the contrary in this Agreement, nothing contained in this Section 7.12 shall require, and in no event shall the reasonable best efforts of Parent or Merger Sub be funded on deemed or construed to require, either Parent or Merger Sub to (i) seek the Equity Financing from any source other than the Equity Investors counterparty to, or in any amount in excess of that contemplated by, the Equity Commitment Letter, or (ii) pay any material fees in excess of those contemplated by the Equity Commitment Letter or the Debt Commitment Letter.
(b) Upon request of the Company, Parent shall apprise the Company of material developments relating to the Financing and shall give the Company prompt notice of 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) any Commitment Letter or adversely affect Definitive Financing Agreement, as applicable, shall expire or be terminated for any reason, (ii) any financing source that is a party to any Commitment Letter and is also party to any Definitive Financing Agreement notifies Parent that such source no longer intends to provide financing to Parent on the conditionality terms set forth therein, or availability (iii) for any reason Parent no longer believes in good faith that it will be able to obtain all of the Financing contemplated thereby by the Commitment Letters on the Closing Date)terms described therein. Parent shall not amend, as may be amended alter or modified in accordance with the terms hereofreplace, collectivelyor agree to amend, the “Financing Commitments”)alter or replace, pursuant to which the Financing Sources party thereto have committed, subject to the terms and conditions set forth therein, to lend the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portion, the “Financing”). None of the Financing Commitments has been amended or modified prior to the date of this Agreement any Commitment Letter in any manner that would adversely impact the availability of, (x) impose new or add additional conditions precedent to the availability of the Financing, and, as of the date of this Agreement, no such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modifyotherwise expand, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereof, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that modify any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any receipt of the transactions contemplated hereby.Financing,
Appears in 1 contract
Sources: Merger Agreement (Diamond Resorts International, Inc.)
Financing. (a) As of the date hereof, Purchaser has delivered Parent and Merger Sub shall use their reasonable best efforts to Seller true and correct copies of arrange (ior cause to be arranged) the executed commitment letter, dated as of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) and the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject to the terms and conditions set forth therein, to lend the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portion, the “Financing”). None of the Financing Commitments has been amended or modified prior to the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, as of the date of this Agreement, no such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date of this Agreement the commitments contained described in the Financing Commitments have not been withdrawn in a timely manner including using reasonable best efforts to (i) negotiate (or rescinded in any respect.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing cause to be funded negotiated) definitive agreements (the “Financing Agreements”) with respect thereto on the Closing Date terms and conditions contained therein, (ii) satisfy (or adversely affect the conditionality cause to be satisfied) on a timely basis all conditions applicable to Parent or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth Merger Sub in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments Agreements that are payable on or prior to the date hereof. As of the date hereof, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financingwithin their respective control, other than as expressly set forth in any condition where the Financing Commitment Documents delivered failure to Seller prior to the date hereof. As be so satisfied is a direct result of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, (ii) constitute a Company’s failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of comply with its obligations under this Agreement Agreement, and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason (iii) consummate (or cause to believe that any of the conditions to be consummated) the Financing contemplated by the Financing Commitments applicable at or prior to it will the Closing.
(b) If Parent or Merger Sub becomes aware that any portion of the Debt Financing has become, or is reasonably likely to be, unavailable on the terms and conditions contemplated in the Debt Commitment Letter or the definitive agreements with respect thereto (the “Debt Financing Agreements”), (A) Parent shall promptly so notify the Company, and (B) each of Parent and Merger Sub shall use its reasonable best efforts to arrange to obtain alternative debt financing from the same or alternate sources, as promptly as practicable following the occurrence of such event (and in any event not later than five (5) Business Days prior to the Termination Date), on terms and conditions (including flex provisions) not materially less favorable, in the aggregate, from the standpoint of the Company, to Parent and Merger Sub than those contained in the Debt Commitment Letter, in an amount at least equal to the Debt Financing or such unavailable portion thereof, as the case may be (the “Alternative Debt Financing”), and to enter into new definitive agreements with respect to such Alternative Debt Financing (the “Alternative Debt Financing Agreements” and together with the Debt Commitment Letter and the Debt Financing Agreements, each a “Debt Financing Document”) which shall replace the existing Debt Financing Commitments; provided that Parent and Merger Sub shall not be satisfied required to execute any Alternative Debt Financing Agreement or arrange for such Alternate Debt Financing on terms and conditions (including flex provisions) which are materially less favorable, in the Closing Dateaggregate, to Parent and Merger Sub than those included in the Debt Financing Commitments and the Debt Financing Agreements. Purchaser affirms Parent shall deliver to the Company as promptly as practicable (and no later than two (2) Business Days) after such execution, a true and complete copy of each such Alternative Debt Financing Agreement (except for customary engagement letters, Fee Letters and non-disclosure agreements). Any reference in this Agreement to (A) the “Debt Financing” shall be deemed to include the debt financing contemplated by the Debt Financing Documents to the extent so amended, restated, supplemented, replaced, substituted or modified pursuant to this Section 6.16, including any Alternative Debt Financing, (B) the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter to the extent so amended, restated, supplemented, replaced, substituted or modified (including any Debt Financing Documents to the extent then in effect) and (C) any reference in this Agreement to “Fee Letter” shall be deemed to include any Fee Letter relating to the Debt Commitment Letter to the extent so amended, restated, supplemented, replaced, substituted or modified (including in connection with any Debt Financing Documents to the extent then in effect).
(c) Neither Parent nor Merger Sub shall agree to or permit any amendments or modifications to, or grant any waivers of, any condition or other provision under any Financing Commitment or Financing Agreement without the prior written consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed) if such amendments, modifications or waivers would (i) reduce the aggregate amount of the Financing (it being understood that it the Debt Financing or the Equity Financing may be reduced so long as the Equity Financing or the Debt Financing is increased by a corresponding amount) or (ii) impose new or additional conditions to the Debt Financing or otherwise expand, amend or modify the Financing in a manner that would reasonably be expected to (A) prevent or materially delay the consummation of the Merger and the other Transactions or (B) adversely impact in any material respect the ability of Parent or Merger Sub to enforce its rights against the other parties to any Financing Commitment or Financing Agreement. Without limiting the generality of the foregoing, neither Parent nor Merger Sub shall release or consent to the termination of the obligations of the Rollover Shareholders or the Debt Financing Sources under any Financing Commitment except as expressly contemplated hereby. Parent shall (i) prior to the Closing, give the Company prompt notice (A) upon becoming aware of any material breach of any provision of, or termination by any party to, any Debt Financing Document, or (B) upon the receipt of any written notice or other written communication from any person with respect to any threatened material breach or threatened termination by any party to any Debt Financing Document, and (ii) prior to the Closing, otherwise keep the Company informed on a reasonably current basis of the status of Parent and Merger Sub’s efforts to arrange the Debt Financing or Alternative Debt Financing.
(d) Each of Parent and Merger Sub acknowledges and agrees that the obtaining of the Financing or Alternative Debt Financing shall not be a condition to the Closing or any Closing, and reaffirms its obligation to consummate the Transactions irrespective and independently of its other obligations under this Agreement that Purchaser obtains the availability of the Financing or Alternative Debt Financing, subject to the applicable conditions set forth in Article VII, the breach of which obligation will give rise to the remedies set forth in Article VIII.
(e) Nothing in this Section 6.16 or any other financing for provision of this Agreement shall require, and in no event shall the “reasonable best efforts” of Parent or related Merger Sub be deemed or construed to require, Parent or Merger Sub to (i) waive any term or condition of this Agreement, (ii) pay any fees in excess of those contemplated by the transactions contemplated herebyDebt Financing (whether to secure waiver of any conditions contained therein or otherwise), or (iii) commence any legal action or proceeding against any Debt Financing Source.
Appears in 1 contract
Financing. (a) As of the date hereofof this Agreement, Purchaser Parent has delivered to Seller true the Company a true, complete and correct copies copy of (i) the an executed commitment letter, dated as of the date hereofof this Agreement, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) and the Financing Sources thereto (including all exhibits, schedules, schedules and annexes theretothereto (as amended, and modified, supplemented, replaced or extended from time to time after the executed fee letter associated therewith and referenced therein (collectivelydate of this Agreement in compliance with Section 5.15, the “Financing Commitment DocumentsLetter”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with from the terms hereof, collectively, the “Financing Commitments”)Lenders, pursuant to which the Financing Sources party thereto Lenders have committedagreed, subject to the terms and conditions set forth thereinthereof, to lend provide the debt amounts set forth thereintherein (the debt financing contemplated by the Commitment Letter, a portion together with any permitted Alternative Debt Financing, is collectively referred to in this Agreement as the “Debt Financing”) and (ii) the fee letter referred to in the Commitment Letter (with only fee amounts, pricing caps and other economic terms redacted (none of which shall be used for would adversely affect the purposes of funding the purchase amount or availability of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein Debt Financing)) (such portioneach as amended, the “Financing”). None of the Financing Commitments has been amended modified, supplemented, replaced or modified prior extended from time to time after the date of this Agreement in any manner that would adversely impact compliance with Section 5.15, the availability of“Fee Letter”). The copies of the Commitment Letter and Fee Letter attached hereto as Schedule 4.7(ii) and Schedule 4.7(ii) are true, accurate and complete copies of the Commitment Letter and Fee Letter (subject to redaction as described above) as in effect on the date of this Agreement.
(b) Except as expressly set forth in the Commitment Letter (or add additional conditions precedent in the unredacted portions of the Fee Letter) delivered to the availability of the Financing, andCompany, as of the date of this Agreement, there are no such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments conditions precedent to the draft credit agreement contemplated therebyobligations of the Lenders to provide the Debt Financing or any contingencies that would permit the Lenders to reduce the total amount of the Debt Financing. There are no other agreements, and amendments side letters or joinders arrangements relating to the Debt Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents which Parent or similar entities as parties thereto who had not executed the Financing Commitments as any of the date hereof), and its subsidiaries is a party as of the date of this Agreement which would impose conditions to the commitments contained funding in full of the Financing, other than those set forth in the Financing Commitments have not been withdrawn Commitment Letter (or rescinded in any respect.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount unredacted portions of the Financing Fee Letter). As of the date of this Agreement, assuming the satisfaction of the Offer Conditions, Parent does not have any reason to believe that it will be unable to satisfy on a timely basis all conditions to be funded on satisfied by it in the Commitment Letter or the Fee Letter at the time it is required to consummate the Offer Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Merger Closing Date)hereunder, nor does Parent have Knowledge, as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK of this Agreement, that any of the Lenders will not perform their respective funding obligations under the Commitment Letter in accordance with its terms and conditions.
(c) As of the date of this Agreement, (i) the Commitment Letter is a party that impose conditionsvalid, affect binding obligation (subject to bankruptcy, insolvency or similar Laws affecting the availability enforcement of or modifycreditors rights generally and equitable principles of general applicability) of Parent and, amend or expand the conditions to the funding Knowledge of Parent, the other parties thereto, (ii) the Commitment Letter is in full force and effect and (iii) assuming the satisfaction of the Financing condition contained in Section (c)(ii) of Annex A, no event has occurred that, with or without notice, lapse of time, or both, would reasonably be expected to constitute a default or breach or a failure to satisfy a condition precedent on the transactions contemplated hereby other than as expressly set forth part of Parent or any of its Affiliates under the terms and conditions of the Commitment Letter and Fee Letter. Parent has paid in full or will pay in full on or before the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid Offer Closing any and all commitment fees or other fees in connection with required to be paid pursuant to the Financing Commitments that are payable terms of the Commitment Letter and Fee Letter on or before the Offer Closing. The Commitment Letter and Fee Letter have not been modified, altered or amended on or prior to the date hereofof this Agreement. As None of the date hereof, commitments under the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium Commitment Letter have been withdrawn or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller rescinded prior to the date hereof. As of this Agreement.
(d) Assuming the satisfaction of the date hereofOffer Conditions, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability proceeds of the Financing on Debt Financing, if funded, together with available cash of Parent, Purchaser and the Closing DateCompany and the Company Subsidiaries, (ii) shall constitute a failure to satisfy a condition precedent to sufficient funds for the availability satisfaction of the Financing on the part all of SigmaTEK or Purchaser or, (iii) to the knowledge of Parent’s and Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its ’s obligations under this Agreement on the Offer Closing Date, including the payment of the Offer Price in respect of each share of Company Common Stock validly tendered and accepted in the Offer, the Merger Consideration and all other amounts to be paid pursuant to Section 2.5 and Section 2.6 and the satisfaction payment of all associated costs and expenses of the other conditions set forth in Sections 8.1, 8.2 Offer and 8.3, SigmaTEK and Purchaser have no reason to believe that the Merger (including any repayment or refinancing of indebtedness of the conditions to Company required in connection therewith).
(e) In no event shall the Financing contemplated receipt or availability of any funds or financing (including, for the avoidance of doubt, the Debt Financing) by the Financing Commitments applicable to it will not Parent or any Affiliate thereof be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing or any of its other Parent’s obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated herebyhereunder.
Appears in 1 contract
Sources: Merger Agreement (RetailMeNot, Inc.)
Financing. (a) As Parent shall use its reasonable best efforts to obtain the Financing on the terms and conditions described in the Financing Commitments or terms that would not adversely impact the ability of Parent or Merger Sub to timely consummate the date hereoftransactions contemplated hereby, Purchaser has delivered to Seller true and correct copies of including using its reasonable best efforts (i) to maintain in effect the executed commitment letterFinancing Commitments and to negotiate definitive agreements with respect thereto on the terms and conditions contained in the Financing Commitments (or other terms that would not adversely impact the ability of Parent or Merger Sub to timely consummate the transactions contemplated hereby), dated as (ii) to satisfy all conditions precedent to the obligations of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) and parties thereunder to make the Financing Sources thereto in such definitive agreements available to Parent and consummate the Financing at or prior to the Closing, (including all exhibits, schedules, iii) to comply with its obligations under the Financing Commitments and annexes thereto, and (iv) to enforce its rights under the executed fee letter associated therewith and referenced therein (collectively, Financing Commitments. Parent shall give the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none Company prompt notice upon becoming aware of which would reduce the amount any material breach by any party of the Financing to be funded on the Closing Date Commitments or adversely affect the conditionality or availability any termination of the Financing contemplated thereby Commitments. Parent shall keep the Company informed on a reasonably current basis and in reasonable detail of the status of its efforts to arrange the Financing and provide to the Company copies of all documents related to the Financing to the extent such documents contain any additional conditions precedent not set forth in the Debt Commitment Letters to the obligations of the parties thereunder to make the Financing available to Parent and consummate the Financing at or prior to the Closing Date(it being understood that no such document will contain any such conditions precedent that would have any of the effects described in clauses (1)-(4) of the following sentence). In connection with its obligations under this Section 5.09, as may Parent shall be amended permitted to amend, modify or modified in accordance replace the Debt Commitment Letters with the terms hereof, collectively, new Debt Commitment Letters (the “New Financing Commitments”), pursuant provided that Parent shall not permit any replacement of, or amendment or modification to which be made to, or any waiver of any material provision or remedy under, the Financing Sources party thereto have committedDebt Commitment Letter if such replacement, subject to amendment, modification, waiver or remedy (1) reduces the terms and conditions set forth therein, to lend the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase aggregate amount of the Purchased Equity Debt Financing below that amount required to consummate the Merger and the other transactions contemplated hereby, (2) adversely amends or expands the conditions to the drawdown of the Debt Financing in any respect that would make such conditions less likely to be satisfied by the End Date or that would expand the possible circumstances under which such conditions would not be satisfied by such date, (3) can reasonably be expected to delay the Closing, or (4) is otherwise adverse to the interests of the Company in any material respect; and provided, further, that nothing in this Agreement and paying Section 5.09 shall be deemed to excuse, waive compliance with or modify any of the related fees and expenses specified herein obligations set forth in the Confidentiality Agreement. In the event that all conditions to the Financing Commitments (such portionother than, in connection with the Debt Financing, the “availability or funding of any of the Equity Financing”)) have been satisfied, Parent shall, from and after the final day of the Marketing Period and subject to the satisfaction of the conditions set forth in Sections 6.01 and 6.03 hereof, use its reasonable best efforts to cause the lenders and other Persons providing such Financing to fund the Financing required to consummate the Merger on the Closing Date. None In the event that Parent 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 Commitments has been amended or modified prior to the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, generally less likely as of on the date of this Agreement, no such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereof, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated hereby.Parent shall notify the
Appears in 1 contract
Sources: Merger Agreement (Harman International Industries Inc /De/)
Financing. (a) As Verizon shall have the right to designate, in consultation with the Company, the final form of the date hereofSpinco Securities and related agreements (including registration rights arrangements and indenture) embodying the terms set forth in Exhibit C of the Distribution Agreement and to prepare the documents related thereto, Purchaser has delivered to Seller true and correct copies of provided that (i) the executed commitment letterCompany shall have the right and obligation, dated as in consultation with Verizon, to negotiate and approve covenants that are generally consistent with then current market practice for 144A debt offerings and economic terms of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) Spinco Securities and the Financing Sources thereto related agreements (including all exhibits, schedules, registration rights arrangements and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”indenture) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount are not specified on Exhibit C of the Financing Distribution Agreement as long as such covenants and economic terms are consistent with Exhibit C of the Distribution Agreement and shall allow the Spinco Securities to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject to the terms and conditions set forth therein, to lend the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein valued at par upon issuance (such portion, the “Financing”). None of the Financing Commitments has been amended or modified prior to the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, as of the date of this Agreement, no such amendment or modification is contemplated (other thanincluding, for the avoidance of doubt, amendments for purposes of the Debt Exchange if Verizon elects to consummate such Debt Exchange at the time of Closing) and allow for the timely consummation of the Debt Exchange (if elected by Verizon) and (ii) any other material terms of the Spinco Securities and related agreements that are not addressed by clause (i) of this Section 7.20(a) or on Exhibit C of the Distribution Agreement shall be subject to the draft credit agreement contemplated therebyjoint approval of the parties, acting reasonably. For the avoidance of doubt, if Verizon elects to consummate the Debt Exchange, it shall have the sole right to structure the arrangements relating thereto with underwriters, arrangers and amendments or joinders other third parties relating to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed Debt Exchange; provided that Verizon shall keep the Financing Commitments as of the date hereof), and as of the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respectCompany reasonably updated regarding such arrangements.
(b) Except for fee letters Each of Verizon, Spinco and the Company shall cooperate in connection with the preparation of all documents and the making of all filings required in connection with the New Financing, the Spinco Securities and the Debt Exchange (complete copies if Verizon elects to consummate the Debt Exchange) and shall use their respective commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all other things necessary, proper or advisable to consummate the New Financing, the issuance of which have been provided the Spinco Securities and the Debt Exchange (if Verizon elects to Seller; consummate the Debt Exchange) and the other transactions contemplated in connection therewith. Without limiting the generality of the foregoing, each of Verizon, Spinco and the Company shall use their respective commercially reasonable efforts to cause their respective employees, accountants, counsel and other representatives to cooperate with each other in (i) participating in meetings, drafting sessions, due diligence sessions, management presentation sessions, “road shows” and sessions with rating agencies in connection with the syndication or marketing of the New Financing, the Spinco Securities and the Debt Exchange (if Verizon elects to consummate the Debt Exchange), (ii) preparing offering memoranda, private placement memoranda, prospectuses and similar documents deemed reasonably necessary by Verizon, Spinco or the Company, to be used in connection with consummating the New Financing, the issuance of the Spinco Securities and the Debt Exchange (if Verizon elects to consummate the Debt Exchange), (iii) executing and delivering all documents and instruments deemed reasonably necessary by Verizon, Spinco or the Company to consummate the New Financing, the issuance of the Spinco Securities and the Debt Exchange (if Verizon elects to consummate the Debt Exchange), including any underwriting or placement agreements, pledge and security documents, other definitive financing documents, including any intercreditor or indemnity agreements, or other requested certificates or documents as may be reasonably requested in connection with the New Financing, the Spinco Securities or the Debt Exchange (if Verizon elects to consummate the Debt Exchange), provided, however, that (A) no such agreements or documents shall impose any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded monetary obligation or liability on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing Spinco or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller Company prior to the date hereof. Purchaser Effective Time and SigmaTEK have fully paid (B) Verizon shall not be obligated to incur any and all commitment fees or other fees obligations in connection with the New Financing Commitments (other than the obligation to pay Spinco Debt Expenses as provided in the Distribution Agreement and the non-monetary cooperation obligations set forth above in this Section 7.20(b)), (iv) disclosing the terms and conditions of the New Financing, the Spinco Securities and the Debt Exchange (if Verizon elects to consummate the Debt Exchange), as reasonably appropriate, in the Registration Statements, and (v) taking all other actions reasonably necessary in connection with the New Financing, including any such actions required to permit the assumption by the Surviving Corporation of the debt that is part of the New Financing and the Spinco Securities at the Effective Time. The obligations of Verizon, Spinco and the Company under this Section 7.20(b) with respect to the New Financing shall also apply to any Alternative Financing (as defined below).
(c) No party shall modify any term of the Commitment Letter (or any related fee agreement) without the consent of the Company and Verizon. Spinco and the Company, acting reasonably, shall jointly participate in the negotiation of the definitive agreements relating to the New Financing, consistent with the terms and conditions of the Commitment Letter. If for any reason any portion of the New Financing becomes unavailable or is insufficient to consummate the transactions contemplated by the Transaction Documents, the Company shall, as promptly as practicable following such event, take all actions necessary to obtain, in consultation with Verizon, and consummate on such terms as may then be available, including from alternate sources, alternative financing for the same purposes as the purposes of the New Financing (“Alternative Financing”). Any commitment fees associated with any Alternative Financing shall be borne by the Company. Verizon shall cooperate with the Company’s efforts to seek to obtain the Alternative Financing but shall not be obligated to incur any obligations in connection with the Alternative Financing (other than the obligation to pay Spinco Debt Expenses as provided in the Distribution Agreement and the non-monetary cooperation obligations set forth Section 7.20(b)).
(d) The Company shall take all actions necessary to satisfy all conditions to the New Financing (or, if applicable, the Alternative Financing) that are payable within its control, including arranging for the payoff, termination and/or cancellation of all loan documents in respect of indebtedness of the Company that is contemplated by any commitment letter associated with the New Financing or any Alternative Financing to be repaid at the Closing with the proceeds from the New Financing or any Alternative Financing.
(e) The Company, if it does not enter into the amendment to the Company Credit Agreement contemplated by the Backstop Facility Commitment and thereby obtain the consent disclosed in Section 6.3(c) of the Company Disclosure Letter, shall enter into the documentation for, and draw on or the facility contemplated by, the Backstop Facility Commitment prior to the date hereof. As expiration of the date hereofBackstop Facility Commitment (including any extension thereof that may be entered into with the consent of Verizon, the Financing Commitments are not to be unreasonably withheld, delayed or conditioned), such draw to be in an amount sufficient to refinance in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Company Credit Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or pay all related to any of the transactions contemplated herebyfees.
Appears in 1 contract
Financing. (a) As of the date hereof, Purchaser has delivered Buyer shall use its commercially reasonable efforts to Seller true and correct copies of (i) the executed commitment letter, dated as of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) arrange and obtain the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject to the terms and conditions set forth thereindescribed in the Commitment Letters; (ii) enter into definitive agreements with respect thereto on the terms and conditions reflected in the Commitment Letters or on other terms no less favorable in any material respect in the aggregate to Buyer, which agreements shall be in effect no later than the Closing; (iii) satisfy on a timely basis all conditions applicable to lend Buyer in such definitive agreements that are within its control and (iv) consummate the amounts set forth therein, a Financing no later than the Closing. In the event that any portion of which the Financing becomes unavailable in the manner or from the sources contemplated in the Commitment Letters, (A) Buyer shall be used for promptly notify Seller, (B) Buyer shall use its commercially reasonable efforts to arrange to obtain alternative financing from alternative sources as promptly as practicable following the purposes occurrence of funding such event but in no event later than the purchase last day of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein Marketing Period, including entering into definitive agreements with respect thereto (such portion, definitive agreements entered into pursuant to this Section 5.14 being referred to as the “FinancingFinancing Agreements”). None of the Financing Commitments has been amended or modified prior to the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, as of the date of this Agreement, no such amendment or modification is contemplated (other than, for For the avoidance of doubt, amendments to in the draft credit agreement contemplated thereby, and amendments event that (i) all or joinders to any portion of the Financing Commitments solely structured as high yield financing has not been consummated; (ii) all conditions set forth in Articles 6 and 7 hereof have been satisfied or waived (other than conditions that are satisfied by action taken at the Closing); and (iii) the bridge facilities contemplated by the Commitment Letters or the fee letter thereto are available on terms and conditions described in the Commitment Letters, then Buyer shall agree to use the bridge facility contemplated by the Commitment Letters governing the debt Financing (the “Debt Commitment Letters”), or the fee letter thereto, if necessary, to replace such high yield financing no later than the last date of the Marketing Period. In furtherance of the provisions of this Section 5.14, one or more Debt Commitment Letters may be amended, amended and restated, supplemented or otherwise modified or superseded to add one or more lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who which had not executed the Financing Commitments Debt Commitment Letters as of the date hereof), and as of the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce increase the amount of indebtedness or otherwise replace one or more facilities with one or more new facilities, to replace or otherwise modify the Debt Commitment Letters, or otherwise (the “New Debt Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing DateCommitments”), as of provided that the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the New Debt Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereof, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to shall not (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as adversely amend the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As the Debt Commitment Letters (the “Debt Financing”), in any material respect, (ii) reasonably be expected to delay or prevent the Closing, or (iii) reduce the aggregate amount of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated hereby.available Debt
Appears in 1 contract
Sources: Asset Purchase Agreement (Clear Channel Communications Inc)
Financing. (a) As of the date hereof, The Purchaser has delivered to Seller true and correct copies of the Company (i) the a true and complete copy of a fully executed commitment letter, dated as of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) the Purchaser and the Financing Sources party thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that to such Financing Commitment Documents may be redacted letters in effect as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms date hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, upon the terms and subject to the terms and conditions set forth therein, to lend provide the amounts set forth therein, Financing and (ii) a portion of which shall be used for the purposes of funding the purchase true and complete copy of the Purchased Equity fully executed fee letter referenced therein (together, and subject to the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portionimmediately succeeding sentence, the “Financing”"Debt Commitment Letter"). None ; provided that fees, "market flex" and other economic terms which do not affect the amount, availability or conditionality of any portion of the Financing Commitments may be redacted. As used in this Agreement, the term "Debt Commitment Letter" shall include any other debt commitment letter (including any replacement of the Debt Commitment Letter and related fee letter in connection with any Alternative Financing) executed and delivered in accordance with Section 6.12, as replaced, amended, supplemented, modified or waived in accordance with Section 6.12, including all exhibits, schedules, and annexes to such letters.
(b) As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and is a legal, valid and binding obligation of Purchaser, and to the knowledge of Purchaser, the other parties thereto, and enforceable in accordance with its terms against the Purchaser, and to the knowledge of the Purchaser, each of the other parties thereto, in each case, subject to the Enforceability Limitations, regardless of whether enforcement is sought in a proceeding at law or in equity. All commitment fees required to be paid under the Debt Commitment Letter have been paid in full by the Purchaser or will be duly paid in full by the Purchaser as and when due. The Debt Commitment Letter has not been amended amended, restated, modified or modified terminated, nor has compliance with any term thereof been waived, on or prior to the date of this Agreement and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded or otherwise modified in any manner that would adversely impact the availability of, respect on or add additional conditions precedent prior to the availability date of the Financing, and, as this Agreement. As of the date of this Agreement, no such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect.
(bi) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereof, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default breach or breach default, in each case, on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of the Purchaser, result in any other party, under the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied Debt Commitment Letter and each condition set forth in Section 8.2 is satisfied. As of the date hereof, (ii) assuming the accuracy of the Company's and the Seller's representations and warranties set forth contained in Article III and Article IV such that to the condition level required to satisfy the conditions to Closing set forth in Section 8.2(a7.2(a) is satisfiedand compliance by the Company with its covenants contained in Article VI, in each case, in all material respects, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have has no reason to believe knowledge that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms Date or that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing funds necessary for the satisfaction of all of the Purchaser's obligations under this Agreement will not be available to the Purchaser on the Closing Date. The consummation of the Financing is subject to no conditions precedent other than those expressly set forth in the copy of the Debt Commitment Letter delivered to the Company, and there are no contingencies that would permit the Financing Sources to reduce the total amount of the Financing other than those expressly set forth in the copy of the Debt Commitment Letter delivered to the Company on or prior to the date hereof. Except for any engagement letters or related fee letters related to the permanent financing referred to in the Debt Commitment Letter, as of the date of this Agreement, there are no side letters or other agreements, Contracts or arrangements to which the Purchaser or any of its Affiliates is a party related to the funding of the Financing. Assuming the funding of the full amount of the Financing in accordance with and subject to the satisfaction (or waiver) of the conditions of the Debt Commitment Letter, the aggregate proceeds of the Financing, as of the Closing Date, will be sufficient to enable the Purchaser to pay in cash all amounts required to be paid by the Purchaser in cash on the Closing Date, including all payments, fees and expenses payable by the Purchaser related to or arising out of the consummation of the transactions contemplated herebyby this Agreement that are required to be paid as of such date. For the avoidance of doubt, the obligations of the Purchaser hereunder are not conditioned in any manner upon the Purchaser obtaining any financing.
Appears in 1 contract
Sources: Stock Purchase Agreement (Intercontinental Exchange, Inc.)
Financing. (a) As 8.1 Each VENTURER shall be obliged to advance and/or procure the advance of the date hereofrelevant MANDATORY LOANS, Purchaser has delivered that is as reflected in the respective FACILITIES AGREEMENTS and the VENTURERS shall procure that such advances (to Seller true and correct copies of (ithe extent that same may not already have been advanced, wholly or partially) are duly effected as soon as possible after the executed commitment letter, dated as SIGNATURE DATE.
8.2 Each MANDATORY LOAN shall be separately entered in the books of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) ELSBURG JV as a loan and shall be evidenced as such. The MANDATORY LOANS shall be for the Financing Sources thereto (including all exhibits, schedules, period and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject to the terms and conditions set forth therein, to lend in the amounts set forth therein, a portion of which respective FACILITIES AGREEMENTS and shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portion, the “Financing”). None of the Financing Commitments has been amended or modified prior to the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, repaid as of the date of this Agreement, no such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respecttherein provided.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, 8.3 To the extent that any such fee letter the EXECUTIVE COMMITTEE may redacted as to economic require additional capital contributions over and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly above those set forth in the Financing Commitments delivered to Seller prior MANDATORY LOANS, then and in such event the VENTURERS may each contribute a like amount.
8.4 Any amount owing on loan account which is disparate to the date hereofother loan account based upon the PERCENTAGE INTEREST of the VENTURERS shall in respect of the excess only, attract and be paid interest monthly in arrear at 2% (two per centum) above the prime overdraft rate as charged from time to time by the ELSBURG JV's bankers or, if it has no overdraft, as charged by the said bankers to its best corporate customers on an unsecured basis and until such time as the loan accounts are equal, whether by way of a reduction of the excess or by way of the one VENTURER effecting payment of the shortfall. Purchaser In the alternative, the VENTURER not advancing “ the excess amount ” will be entitled to dilute its PERCENTAGE INTEREST to cater therefor but irrespective of the then different PERCENTAGE INTERESTS of the VENTURERS all their voting rights, be it of their nominees on the EXECUTIVE COMMITTEE or as members per se, shall remain equal and SigmaTEK have fully paid will in each instance still require unanimity save that notwithstanding anything to the contrary whilst the consent of the then minority VENTURER to a DISTRIBUTION or the repayment of any loan account, in whole or in part, shall be required, it shall not be capable of being unreasonably withheld or delayed.
8.5 Any amount owing on loan account shall be fixed and all commitment fees or other fees in connection shall not be reclaimable by the VENTURER/S to whom same is owing, save with the Financing Commitments that are payable on or prior to the date hereof. As written consent of the date hereofEXECUTIVE COMMITTEE unless terms other than the above have been specifically agreed upon and recorded at the time the cash is lent and advanced, e.g. as per the Financing Commitments are FACILITIES AGREEMENTS, or unless the cash held at the relevant time by the ELSBURG JV exceeds three times the monthly working capital requirements of the ELSBURG JV as confirmed by the AUDITORS and in full force the absence of agreement, as determined and effect with respect toconfirmed by an independent external auditor, and are in which event such repayment shall in the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, first instance be appropriated to reduce the knowledge of Purchaser, each disparity in the loan accounts of the other parties thereto (exceptVENTURERS based upon the ratio of their PERCENTAGE INTERESTS in the ELSBURG JV and thereafter in such ratio.
8.6 Nothing hereinbefore contained shall preclude a VENTURER from calling up itsor compulsory) of the ELSBURG JV or either VENTURER or in the event of its effecting any offer of compromise in terms of the Companies Act, in each caseNo 61 of 1973, as such enforceability may be limited by applicable bankruptcyamended, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to event of any final judgment being obtained against the date hereof. As ELSBURG JV or either VENTURER which shall remain unsatisfied for a period of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to 14 (ifourteen) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated herebydays thereafter.
Appears in 1 contract
Financing. (a) As Notwithstanding anything in this Agreement to the contrary, Purchaser acknowledges and agrees that Purchaser’s obligations under this Agreement are not conditioned in any manner whatsoever upon Purchaser obtaining the Debt Financing to satisfy the Financing Purposes, and the obtaining of the date hereofDebt Financing is not a condition to Closing or the consummation of the Transactions.
(b) Purchaser shall, Purchaser has delivered and shall cause its controlled Affiliates to, use reasonable best efforts to Seller true take, or cause to be taken, all actions, and correct copies of to do, or cause to be done, all things necessary to arrange, consummate and obtain the Debt Financing on the terms and conditions described in the Debt Financing Commitment and the Fee Letter (including the “market flex” provisions set forth in the Fee Letter) by no later than the Closing Date, including using its (and causing its controlled Affiliates to use) reasonable best efforts to (i) maintain in full force and effect (and comply with their respective obligations under) the executed commitment letter, dated as of Debt Financing Commitment on the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) terms and the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced conditions contained therein (collectivelyincluding, to the extent the same are exercised, the “market flex” provisions set forth in the Fee Letter) until the Transactions are consummated (other than modifications to such terms and conditions as are acceptable to Purchaser so long as such modifications would not violate the restrictions on amendments and modifications otherwise set forth in Section 6.8(c)), (ii) negotiate and enter into definitive agreements with respect thereto on the terms and conditions contained therein (including, to the extent the same are exercised, the “market flex” provisions set forth in the Fee Letter) or on other terms acceptable to Purchaser that would not (A) reduce the aggregate amount of the Debt Financing to an amount less than, when taken together with cash available to the Purchaser, the amount necessary to satisfy the Financing Purposes, or (B) impose new or additional conditions precedent to the receipt of all or any portion of the Debt Financing and (iii) taking into account the expected timing of Closing pursuant to Section 2.4, satisfy on a timely basis (or obtain a waiver of) all conditions applicable to Purchaser in the Debt Financing Commitment. If all of the conditions to Purchaser’s obligations under Section 8.1 and Section 8.2 (other than those conditions that by their terms, are to be satisfied on the Closing Date; provided that each such condition is then capable of being satisfied) have been satisfied or waived, Purchaser shall cause the Debt Financing to be consummated, and shall cause the Debt Financing Sources to fund the Debt Financing, in each case at or prior to the Closing.
(c) Purchaser shall not, and shall cause its controlled Affiliates not to, permit any amendment, restatement, modification, waiver, termination or replacement of the Debt Financing Commitment Documents”(or any portion of the Debt Financing thereunder) without the prior written consent of Seller that (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none i) reduces (or could have the effect of which would reduce reducing) the amount of aggregate cash proceeds available from the Debt Financing (including by increasing the amount of fees to be paid or original issue discount) to an amount less than, when taken together with cash available to the Purchaser, the amount necessary to satisfy the Financing Purposes, (ii) imposes new or additional conditions to the receipt of all or any portion of the Debt Financing or expands, amends or modifies any conditions to the receipt of all or any portion of the Debt Financing on the Closing Date, or (iii) would reasonably be funded expected to (A) delay, prevent, impede or make less likely the funding of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date or adversely affect otherwise prevent, delay or impair the conditionality ability or availability likelihood of Purchaser to timely consummate the Financing contemplated thereby on the Closing Date), as may be amended Transactions or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject to the terms and conditions set forth therein, to lend the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portion, the “Financing”). None of the Financing Commitments has been amended or modified prior to the date of this Agreement in any manner that would B) adversely impact the availability of, ability of Purchaser to enforce its rights against the Debt Financing Sources or add additional conditions precedent any other parties to the availability of Debt Financing or the Financing, and, definitive agreements with respect thereto or (iv) relieves or releases any Debt Financing Source from its obligations under the Debt Financing Commitment (other than as of expressly provided for in the Debt Financing Commitment as in effect on the date hereof in connection with the designation of this Agreementadditional arrangers); provided, no such amendment or modification is contemplated (other thanthat, for the avoidance of doubt, amendments Purchaser may amend, restate or modify the Debt Financing Commitment to the draft credit agreement contemplated thereby, and amendments (1) add or joinders to the Financing Commitments solely to add replace lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had that have not executed the Debt Financing Commitments as of the date hereof), and as of the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), Commitment as of the date hereof there and to grant to such Debt Financing Sources such approval rights as are no side letters customarily granted to additional lenders, lead arrangers, bookrunners, syndication agents or contracts to which Purchaser similar entities, (2) increase the commitments or SigmaTEK is a party that impose conditionsthe amount of indebtedness thereunder, affect (3) amends the availability of or modify, amend or expand the conditions definitive agreements with respect to the funding Debt Financing to give effect to any “market flex” terms contained in the Debt Financing Commitment, or (4) amend titles, allocations and fee sharing arrangements with respect to existing and additional Debt Financing Sources. Purchaser shall promptly deliver copies of any amendment, modification, supplement or waiver to the Debt Financing Commitment or Fee Letter to Seller (which may, in the case of the Fee Letter, be redacted as provided in Section 5.7).
(d) If all or any portion of the Debt Financing or becomes unavailable on the transactions terms and conditions contemplated hereby other than as expressly in the Debt Financing Commitment (including the “market flex” provisions set forth in the Financing Commitments delivered Fee Letter), or if Purchaser reasonably determines that such funds may become unavailable to Purchaser on the terms and conditions set forth therein, Purchaser shall as promptly as practicable following the occurrence of such event (i) notify Seller prior in writing thereof as promptly as practicable after obtaining knowledge thereof, (ii) use its reasonable best efforts to the date hereof. Purchaser obtain and SigmaTEK have fully paid any to negotiate and all commitment fees or other fees enter into definitive agreements with respect to alternative financing in connection with the Financing Commitments that are payable on or prior an amount equal to the date hereof. As such portion of the date hereof, Debt Financing from the Financing Commitments are in full force same or alternative debt financing sources (“Alternative Financing”) on terms and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, conditions no less favorable to the knowledge of Purchaser, each of the other parties thereto (excepttaken as a whole, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly contemplated by the Debt Financing Commitment (taking into account the “market flex” provisions set forth in the Fee Letter) or otherwise sufficient to enable Purchaser to consummate the Transactions, and (iii) use its reasonable best efforts to obtain a new financing commitment letter that provides for such Alternative Financing and, promptly after execution thereof, deliver to Seller true, complete and correct copies of the new commitment letter and the related fee letters (which may, in the case of fee letters, be redacted as provided in Section 5.7) and related definitive financing documents with respect to such Alternative Financing. In the event any Alternative Financing is obtained and a new debt financing commitment is entered into in accordance with this Section 6.8(d), references in this Agreement to (A) “Debt Financing Commitment” shall be deemed to include and mean any new debt financing commitment to the extent then in effect and include and mean the Debt Financing Commitment Documents delivered to Seller prior to the date hereof. As extent not superseded by a new debt financing commitment, as the case may be, at the time in question and any new debt financing commitment to the extent then in effect, and (B) “Debt Financing” shall include and mean the financing contemplated by the Debt Financing Commitment as modified pursuant to the immediately preceding clause (A).
(e) Purchaser shall, as promptly as practicable after obtaining knowledge thereof, give Seller written notice of the date hereof, no any (i) material breach or default (or any event has occurred whichor circumstance that, with or without notice, lapse of time or both, would could reasonably be expected to (igive rise to any breach or default) constitute a default or breach on related to the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing DateDebt Financing, (ii) constitute a failure to satisfy a condition precedent actual or threatened (in writing) withdrawal, repudiation or termination by any party to the availability of Debt Financing Commitment or definitive agreements related to the Financing on the part of SigmaTEK or Purchaser orDebt Financing, (iii) material dispute or disagreement between or among any parties to the knowledge of Purchaser, result in the Debt Financing being unavailable on the Closing Date, so long as the conditions Commitment or definitive agreements related to the Debt Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As with respect to the obligation to fund the Debt Financing or the amount of the date hereofDebt Financing to be funded at the Closing, assuming (iv) without limiting any of Seller’s rights hereunder, amendment or modification of, or waiver under, the accuracy Debt Financing Commitment and the Debt Financing, (v) notification from one or more parties to the Debt Financing Commitment or any party to any definitive agreements related to the Debt Financing of the representations and warranties set forth in Article IV such failure or inability to satisfy one or more conditions precedent to the Debt Financing, or (vi) change, circumstance or event that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and causes Purchaser have no reason to believe that it shall not be able to timely obtain all or any portion of the conditions Debt Financing. As soon as reasonably practicable, but in any event within three (3) Business Days after the date Seller delivers to Purchaser a written request, Purchaser shall provide any information reasonably requested by Seller relating to any circumstance referred to in clauses (i) – (vi) of the immediately preceding sentence. Purchaser shall keep Seller informed on a reasonably current basis of the status of its efforts to arrange the Debt Financing contemplated by the Debt Financing Commitments applicable Commitment. In the event that Purchaser commences an enforcement action to it will not be satisfied on enforce its rights under any agreement in respect of the Closing Date. Purchaser affirms that it is not a condition Debt Financing or to the Closing cause any Debt Financing Source to fund all or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any portion of the transactions contemplated herebyDebt Financing, Purchaser shall keep Seller reasonably informed of the status of such enforcement action.
Appears in 1 contract
Financing. (a) As of the date hereof, The Purchaser has delivered shall use best efforts to Seller true arrange and correct copies of (i) the executed commitment letter, dated as of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) and consummate the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), soon as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject to the terms and conditions set forth therein, to lend the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portion, the “Financing”). None of the Financing Commitments has been amended or modified prior to reasonably practicable after the date of this Agreement on the terms and conditions described in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, as of the date of this Agreement, no such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely (provided, that the Purchaser may (x) amend the Debt Financing Commitments to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Debt Financing Commitments as of the date hereof)of this Agreement, or (y) otherwise replace or amend the Debt Financing Commitments 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 the Purchaser, with respect to conditionality, than those in the Debt Financing Commitments as of in effect on the date of this Agreement the commitments contained in Agreement), which actions shall include using best efforts (i) to maintain the Financing Commitments have and negotiating and executing definitive agreements with respect thereto on terms and conditions contained therein, which terms and conditions shall not been withdrawn or rescinded in any respect.
(b) Except for fee letters (complete copies of which have been provided material respect expand upon the conditions to Seller; provided, however, that any such fee letter may redacted as Closing or other contingencies to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded funding on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered (the “Financing Agreements”) and delivering to the Seller a copy thereof as promptly as practicable (and no later than one Business Day) after such execution; (ii) satisfy on a timely basis all conditions in the Financing Commitments and the Financing Agreements that are within its control; (iii) fully enforce its rights under the Financing Commitments and the Financing Agreements; and (iv) consummate the Financing at or prior to the Closing. In the event any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments or the Financing Agreements, the Purchaser shall (subject to the terms of the Investor Financing Commitments) use all commercially reasonable efforts to arrange to obtain promptly any such portion from alternative sources, including, subject to Section 5.10(b), on terms and conditions (including economic terms, termination rights, flex provisions and funding conditions) substantially similar to those included in the Debt Financing Commitments as in effect on the date hereofof this Agreement, in an amount sufficient, when added to the portion of the Financing that is available, to consummate the transactions contemplated by this Agreement and the other Transaction Documents (the “Alternative Financing”) and to obtain, and, when obtained, to promptly provide the Seller with a copy of, a new financing commitment that provides for financing in an amount that is sufficient, when added to the portion of the Financing that is available, to consummate the transactions contemplated by this Agreement and the other Transaction Documents (the “Alternative Financing Commitment”). If the Financing or the Alternative Financing is available to be drawn down by the Purchaser, in an aggregate amount sufficient to consummate the transactions contemplated by this Agreement and the other Transaction Documents, and the conditions to the closing set forth in Section 8.02 have been satisfied (other than conditions that by their nature are to be satisfied at the Closing), the Purchaser shall draw on such Financing or Alternative Financing, shall consummate the Closing and pay the Purchase Price to the Seller.
(b) To the extent applicable, the Purchaser shall use all commercially reasonable efforts to arrange and consummate the Alternative Financing as soon as reasonably practicable on the terms and conditions described in the Alternative Financing Commitment, which shall include (i) negotiating and executing definitive agreements with respect thereto on terms and conditions contained therein (the “Alternative Financing Agreements”) and delivering EXECUTION COPY to the Seller a copy thereof as promptly as practicable (and no later than one Business Day) after such execution; (ii) satisfying on a timely basis all conditions in the Alternative Financing Agreements within its control; (iii) fully enforcing its rights under the Alternative Financing Commitment and the Alternative Financing Agreements; and (iv) consummating the Alternative Financing at or prior to the Closing. Neither the Alternative Financing Commitment nor the Alternative Financing Agreements shall prevent or impede or materially delay the consummation of the transactions contemplated by this Agreement and the other Transaction Documents. The Purchaser shall give the Seller notice promptly upon becoming aware of any material breach or threatened (in writing) material breach by any party to the Financing Commitments or the Financing Agreements and, if applicable, the Alternative Financing Commitment or the Alternative Financing Agreements, and the Purchaser shall give the Seller notice promptly upon becoming aware of any termination or threatened (in writing) termination of the Financing Commitments or the Financing Agreements and, if applicable, the Alternative Financing Commitment or the Alternative Financing Agreements. The Purchaser shall keep the Seller informed on a reasonably current basis in reasonable detail of the status of its efforts to arrange the Financing and, if applicable, the Alternative Financing. The Purchaser shall not, without the prior written consent of the Seller, amend, modify, supplement, restate, substitute or replace the Financing Commitments, any Alternative Financing Commitment, any Financing Agreement or any Alternative Financing Agreement in a manner that expands on the conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in such agreements or that could otherwise impair, delay or prevent the consummation of the transactions contemplated by this Agreement and the other Transaction Documents.
(c) Prior to the Closing, the Seller shall provide, and shall use its reasonable best efforts to cause its officers, employees, representatives and advisors, including legal and accounting advisors, to provide, all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by the Purchaser and SigmaTEK have fully paid any that is customary in connection with the Purchaser’s efforts to obtain the Financing (provided, that such requested cooperation does not unreasonably interfere with the ongoing operations of the Business), including (i) participation in meetings, drafting sessions, rating agency presentations and all commitment fees or other fees due diligence sessions; (ii) furnishing the Purchaser and its financing sources with pertinent information regarding the Business as is customary in connection with the Financing Commitments that are payable on or prior to and any security required therefor; (iii) assisting the date hereof. As Purchaser and its financing sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum for any of the date hereof, Financing; and (B) materials for rating agency presentations; (iv) furnishing the Financing Commitments are in full force and effect Purchaser with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK Required Information and, to the knowledge of Purchaserextent reasonably available to the Seller, each other information of the other parties thereto Business reasonably requested by the Purchaser; and (exceptv) using all commercially reasonable efforts to assist the Purchaser to obtain waivers, in each caseconsents, as such enforceability may estoppels, certificates and approvals necessary or customary for the consummation of the Debt Financing; provided, that Dow shall not be limited by applicable bankruptcy, insolvency, reorganization, moratorium required to pay any commitment or other similar Laws affecting fee or incur any other liability in connection with the enforcement Financing; provided, further, that the effectiveness of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law any documentation executed by any ▇▇▇▇▇▇ Holdco or equity)). As any ▇▇▇▇▇▇ Subsidiary shall be subject to the consummation of the date hereof, there are no conditions precedent or other contingencies related Closing. Notwithstanding anything to the funding of contrary contained herein and unless expressly contemplated by this Agreement (including the full amount of Required Information), the FinancingSeller shall not be required to deliver any financial statements, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof2009 Historical Financial Statements, or other financial information. As of the date hereofEXECUTION COPY
(d) The Purchaser shall, no event has occurred whichand shall cause its Affiliates to, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default promptly upon request by the Seller, reimburse Dow for all reasonable and documented out-of-pocket costs incurred by Dow in connection with cooperation provided for in Section 5.10(c) (such reimbursement to be made promptly and in any event within three Business Days of delivery of reasonably acceptable documentation evidencing such expenses); and (ii) indemnify and hold harmless Dow and its representatives from and against any and all Losses suffered or breach on incurred by them in connection with the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability arrangement of the Financing on and any information utilized in connection therewith (other than information provided by Dow). All non-public or otherwise confidential information regarding the Closing Date, (ii) constitute a failure to satisfy a condition precedent to Business obtained by the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result its Affiliates or their respective representatives pursuant to this Section 5.10 shall be kept confidential in accordance with the Financing being unavailable on Confidentiality Agreement.
(e) Notwithstanding any other provision of this Agreement, for all purposes of this Agreement, unless the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Seller shall have committed an intentional breach of this Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied5.10, the performance by Seller shall not be deemed to be in breach of any of its obligations under this Agreement under, and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser it shall be deemed to have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing or any complied with all of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated herebycontained in Section 5.10(c).
Appears in 1 contract
Sources: Sale and Purchase Agreement
Financing. (a) As Subject to the other provisions of this Agreement, the Buyer shall use its reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, as promptly as reasonably possible (taking into account the anticipated Closing Date), all things necessary, proper or advisable to arrange and obtain, no later than the Closing Date, the proceeds of the date hereofFinancing on the terms and conditions described in the Financing Letters or on such other terms that are acceptable to the Buyer and the providers of the Debt Financing, Purchaser has delivered but only to Seller true and correct copies of the extent such other terms do no constitute a Restricted Financing Commitment Amendment, including using reasonable best efforts to: (i) maintain in full force and effect the executed commitment letterFinancing Letters, dated subject to amendments, modifications, restatements and replacements, in each case, not constituting a Restricted Financing Commitment Amendment and otherwise being permitted hereunder, (ii) satisfy, or cause to be satisfied, on a timely basis all conditions to the Buyer obtaining the Financing set forth therein (or obtain a waiver thereof) that are applicable to Buyer’s, (iii) negotiate, no later than the Closing Date, and enter into definitive agreements with respect thereto on the terms and conditions contemplated by the Debt Commitment Letter and on other terms that are not less favorable to the Buyer (as of determined in good faith by the Buyer) than the terms contemplated by the Debt Commitment Letter in effect on the date hereof, among Purchaser, SigmaTEK Systems, LLC hereof and that would not (“SigmaTEK”x) and reduce (or would reasonably be expected to have the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and effect of reducing) the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the aggregate amount of the Debt Financing to be funded on the Closing Date to an amount less than, when taken together with the Equity Financing and any proceeds received from a draw upon any available revolving credit facility and cash on hand, the amount required by the Buyer to pay for the Financing Uses (the “Required Amount”) unless the Equity Financing is increased by a corresponding amount or the Buyer may draw upon an available revolving credit facility and/or use cash on hand to fund an amount equal to such reduction or (y) impose new or additional conditions precedent, or otherwise amend, modify or expand any conditions precedent in a manner that would reasonably be expected to (1) cause all or any portion of the Debt Financing contemplated under the Debt Commitment Letter to be used in connection with the Closing to be unavailable at the Closing, (2) materially delay or prevent the Closing or (3) adversely affect the conditionality or availability ability of the Financing contemplated thereby on Buyer to enforce its rights against the Closing Dateother parties to the Debt Commitment Letter (the items described in the preceding sub-clauses (x) and (y), as may be amended or modified in accordance with the terms hereof, collectively, the “Restricted Financing CommitmentsCommitment Amendments”)) (provided that the Buyer may amend or modify, pursuant to which the Financing Sources party thereto have committed, subject to the terms and conditions set forth therein, to lend the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portionor waive any provision or remedy under, the “Financing”). None of Debt Commitment Letter (including the Fee Letter) if such amendment, modification or waiver is not a Restricted Financing Commitments has been amended or modified prior to the date of this Agreement in Commitment Amendment, it being understood and agreed that any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, as of the date of this Agreement, no such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or and similar entities as parties thereto who had shall not executed be a Restricted Financing Commitment Amendment), (iv) consummate the Financing Commitments as of at or prior to the date hereof), and as of time the date of Closing is required to occur pursuant to this Agreement the commitments contained in and (v) comply with its obligations under the Financing Commitments have not been withdrawn or rescinded in any respectLetters.
(b) Except for fee letters The Buyer shall give the Seller reasonably prompt written notice (complete copies i) of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date material breach or adversely affect the conditionality material default (or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereof, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred whichthat, with or without notice, lapse of time or both, would reasonably be expected to (igive rise to any material breach or material default) constitute by any party to the Debt Commitment Letter or the other Financing Letters, of which the Buyer becomes aware, if such breach or default would result in a default delay of, or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair in any way limit, the availability of the aggregate amount of Financing contemplated to be funded on the Closing Date, (ii) of the receipt of any written notice or other written communication from any party to the Financing Letters with respect to any material breach or default by any other party to the Commitment Letters and/or the other Financing Letters (iii) of any termination or repudiation (including if any Person party to any Financing Letter indicates in writing that it will not provide, or it refuses to provide, all or any portion of the Financing) of the Financing Letters (other than in accordance with its terms) for any reason by the Buyer or, to the knowledge of the Buyer, any other Person, in each case under any Financing Letter, (iv) if at any time for any reason the Buyer believes in good faith that it will not reasonably be able to obtain all or any portion of the Financing in the amount required to satisfy the Financing Uses on the terms and conditions, in the manner or from the sources contemplated by any of the Financing Letters, and (v) of any expiration or termination of any Financing Letter. As soon as reasonably practicable, the Buyer shall provide any information reasonably requested by the Seller relating to any circumstance referred to in clause (i) through (v) of the immediately preceding sentence; provided that in no event shall the Buyer be required to share any information with the Seller that is subject to attorney-client or other privilege. The Buyer shall keep the Seller informed with respect to material activity concerning the status of the Debt Financing upon written request by the Seller, and, upon the reasonable request of the Seller, provide the Seller copies of the Financing Letters.
(c) If any portion of the Required Amount of Debt Financing becomes unavailable on the terms and conditions contemplated by the Debt Commitment Letter (or on such other terms that are acceptable to both the Buyer and the Debt Financing Sources, so long as such other terms would not constitute a failure Restricted Financing Commitment Amendments), unless the Buyer elects to satisfy increase its Equity Financing by a condition precedent corresponding amount in its sole discretion, the Buyer shall use its reasonable best efforts to arrange to obtain alternative debt financing, including from alternative debt financing sources, on terms and conditions not less favorable to the Buyer (as determined by the Buyer in good faith) than those set forth in the Debt Commitment Letter (unless agreed to by Buyer in its sole discretion), in an amount sufficient to pay (together with all other funding sources then available to the Buyer) such portion of the Required Amount (any such alternative financing, “Alternative Debt Financing”) as promptly as practicable following the occurrence of such event; provided that, without limitation, the Buyer shall not be required to (i) pay any fees or expenses in excess of those contemplated by the Debt Commitment Letter as of the date hereof or (ii) obtain Alternative Debt Financing that includes terms and conditions that are less favorable in any material respect to the Buyer (as determined by the Buyer in good faith) than the terms and conditions set forth in the Debt Commitment Letter as of the date hereof. The Buyer shall promptly provide a true, correct and complete copy of each executed alternative financing commitment to the Seller (redacted for any Permitted Fee Letter Redactions; provided that none of the redacted terms or amounts impose any additional conditions on the availability of the Debt Financing at Closing or reduce the gross aggregate principal amount of the Debt Financing). The Buyer shall not permit, without the prior written consent of the Seller, any material amendment or modification to be made to, or any material waiver of any provision or remedy under, the Financing Letters, including any such amendment, modification or waiver that would constitute a Restricted Financing Commitment Amendment. For purposes of this Agreement, in the event that any new financing commitment letters are obtained in accordance with this Section 5.23(c), (x) any references to the “Debt Commitment Letter” and/or the “Fee Letter” shall, to the extent not superseded by one or more new debt commitment letters at the time in question, be deemed to include the financing contemplated by the Debt Commitment Letter and Fee Letter, in each case, as permitted to be amended, modified or replaced pursuant to this clause (c) or clause (a) above and any financing contemplated by any new debt commitment letters to the extent then in effect, (y) the “Debt Financing” will be deemed to mean the debt financing contemplated by the Debt Commitment Letter as modified pursuant to the foregoing (other than for purposes of Section 4.4) and (z) any references to the “Debt Financing Sources” will be deemed to include the Persons signatory to the new debt financing commitment letters.
(d) The Buyer shall not, without the Seller’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed), permit any amendment, modification or supplement to be made to, or any waiver of, any provision of or remedy under the Financing Letters that would constitute a Restricted Financing Commitment Amendment.
(e) From the date hereof until the earlier of the termination of this Agreement and the Closing Date, the Seller shall, and shall cause the Transferred Subsidiaries to, use its and their reasonable best efforts to, and shall cause its and their respective Affiliates and representatives to, provide to the Buyer, at the Buyer’s sole cost and expense, such cooperation as is reasonably requested by the Buyer that is necessary and customary for any financing of the type contemplated in connection with the arrangement of the Debt Financing contemplated by the Debt Commitment Letter, including using reasonable best efforts to take the following actions: (a) furnishing to the Buyer and the Debt Financing Sources, as promptly as reasonably practicable, such financial and other pertinent information related to the Seller and the Business as may be reasonably requested by the Buyer and the Debt Financing Sources; provided that the Seller shall not be required to provide any financial information (including, without limitation and for the avoidance of doubt, any pro forma financial information) not readily available to the Seller, the TFX Entity, Subsidiaries and / or the Business, (b) upon reasonable notice and at reasonable times, participation in a reasonable number of lender meetings (in each case, which may be held via conference call) and customary rating agency presentations, in each case in connection with the Debt Financing (including with providers or potential providers of the Debt Financing) at times and locations to be mutually agreed between the Buyer and Seller, (c) upon the reasonable request of the Buyer, providing reasonable assistance to the Buyer and its Debt Financing Sources in the preparation of customary bank information memoranda, lender presentations and rating agency presentations in connection with the Debt Financing (it being understood and agreed, for the avoidance of doubt, that neither the Seller nor its Representatives shall be responsible for the preparation of any projections or pro forma financial statements), (d) providing assistance in the delivery of possessory collateral (such as certificated equity and promissory notes) within its possession to the Buyer or the Debt Financing Sources which is required as a condition to obtaining the Debt Financing, subject to the occurrence of the Closing, effective as of the Closing Date, and otherwise facilitating, effective as of the Closing Date, the granting of a security interest (and perfection thereof) in collateral and the termination of the existing guarantee and collateral arrangements in connection with the Release Documents, (e) upon the reasonable request of the Buyer, reasonably assisting the Buyer in the preparation and execution of the definitive documentation for the Debt Financing (including schedules and exhibits thereto) and other customary certificates (including a certificate of the chief financial officer, or person performing similar functions, of the Transferred Subsidiaries with respect to solvency matters) or documents as may be reasonably requested by the Buyer, in each case, to be held in escrow pending release by the Seller at, and subject to the occurrence of, the Closing and (f) upon the reasonable request of the Buyer, using reasonable best efforts to cause directors and officers who will continue to hold such offices and positions from and after the Closing, to take all reasonably requested formal corporate or similar actions, the effectiveness of which shall be subject to the occurrence of the Closing, to permit the consummation of the Debt Financing and to permit the proceeds thereof to be made available on the part Closing Date to fund the amounts required to be funded on the Closing Date pursuant to the terms hereof. All non-public or otherwise confidential information regarding the Seller or its Affiliates obtained by the Buyer or its Representatives pursuant to this Section 5.23 shall be kept confidential in accordance with each Confidentiality Agreement, as modified by Section 5.5. The Seller shall use reasonable best efforts, and shall use reasonable best efforts to cause the Transferred Subsidiaries to, no later than four (4) Business Days prior to the Closing, furnish all reasonably requested documentation and other information required by a Governmental Entity under applicable “know your customer” and anti-money laundering rules and regulations, including the U.S.A. Patriot Act of SigmaTEK 2001 and the Beneficial Ownership Regulation, but in each case, solely as relating to the Transferred Subsidiaries and solely to the extent requested by the Buyer (or Purchaser orits designees) in writing at least ten (10) Business Days prior to the Closing. The Transferred Subsidiaries hereby consent to the reasonable use of its logos, names, and trademarks solely in connection with the Debt Financing; provided, however, that such logos, names and trademarks are used solely in a nominative, non-trademark manner and in a manner that is not intended to or reasonably likely to harm or disparage the Transferred Subsidiaries or the reputation or goodwill of the Transferred Subsidiaries or any of their respective products, services, offerings or intellectual property rights. The Transferred Subsidiaries shall not be required, under the provisions of this Section 5.23 or otherwise in connection with the Debt Financing to pay any commitment or other similar fee prior to the Closing that is not advanced or substantially simultaneously reimbursed by the Buyer. Notwithstanding the foregoing, (i) nothing in this Section 5.23(e) shall require such cooperation to the extent it would (A) unreasonably interfere with the business or operations of the Seller or any of the Transferred Subsidiaries (including, without limitation, (x) preparing and/or providing any information that is not deliverable without undue effort and expense by the Seller and (y) providing access to or disclosing information that such Person determines reasonably and in good faith would be reasonably likely to waive any legal privilege of the Seller or any of its Affiliates), (B) cause significant competitive harm to the Seller and its Subsidiaries if the transactions contemplated by this Agreement are not consummated or (C) subject any of the Seller’s or its Subsidiaries’ respective directors, managers, officers or employees to any actual or potential personal liability, (ii) none of the Seller nor its Subsidiaries shall be required to deliver or obtain opinions of internal or external counsel, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As none of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller nor any of its obligations under this Agreement and Subsidiaries shall be required to pay any commitment or other fee or incur or assume any other liability or obligation in connection with the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Debt Financing contemplated by the Financing Commitments applicable Letters or be required to take any action that would subject it will not be satisfied on 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 agree to provide any indemnity in connection with the Closing Date. Purchaser affirms that it is not a condition to the Closing Debt Financing or any of its other obligations under the foregoing prior to the Closing, (iv) nothing in this Agreement Section 5.23(e) shall require any action that Purchaser obtains would (A) conflict with or violate the Financing Seller’s or any other financing for Subsidiaries’ organizational documents or related to any of the transactions contemplated hereby.Laws or r
Appears in 1 contract
Financing. Parent has delivered to MUSA copies of (a) As of the date hereof, Purchaser has delivered to Seller true and correct copies of (i) the executed a commitment letter, dated as of May 18, 2005 (the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) and the "Equity Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”Letter"), pursuant to which Apollo Management V, L.P. has committed, subject to the terms and conditions set forth therein, to contribute (or cause to be contributed) capital to Parent (the "Equity Financing"), and (b) a commitment letter dated May 13, 2005 (the "Debt Financing Sources party thereto Agreement" and, together with the Equity Financing Letter, the "Financing Agreements"), pursuant to which Credit Suisse First Boston and CIBC World Markets Corp. have committed, subject to the terms and conditions set forth therein, to lend (i) make senior secured increasing rate bridge loans to Merger Sub, and (ii) enter into a credit agreement providing for senior secured asset-based revolving loans to Merger Sub (the "Debt Financing"). As used in this Agreement, the financing to be provided under clause (a) above shall be referred to as the "Equity Financing", the financing to be provided under clause (b) above shall be referred to as the "Debt Financing", and the Equity Financing and Debt Financing shall collectively be referred to as the "Financing." The aggregate proceeds of the Financing are in an amount sufficient to consummate the transactions contemplated hereby, including to pay the aggregate Merger Consideration, to pay the amounts set forth thereinrequired under Section 2.3(a) and 2.3(b), a portion to pay the amounts required to holders of which shall be used for MUSA Warrants if such holders exercise such MUSA Warrants on or after the purposes of funding Closing Date (taking into account the purchase payment of the Purchased Equity exercise price by such holders to MUSA or the Surviving Corporation), to repay certain existing indebtedness of MUSA and the other transactions contemplated by this Agreement its subsidiaries in accordance with Section 5.1(f) and paying the to pay related fees and expenses specified herein (such portionamounts, the “Financing”). None of the Financing Commitments has been amended or modified prior to the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, as of the date of this Agreement, no such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereof, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)"Required Amounts"). As of the date hereof, there are no conditions precedent or other contingencies related to the funding none of the full amount Financing Agreements has been withdrawn and Parent does not know of any facts or circumstances that may reasonably be expected to result in any of the Financing, other than as expressly conditions set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing Agreements not being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated hereby.
Appears in 1 contract
Sources: Merger Agreement (Metals Usa Inc)
Financing. (a) As The Corporation shall use its reasonable best efforts as soon as practicable to consummate a financing on or prior to the first anniversary of the date hereofClosing Date (the "Financing") which shall be sufficient to pay or redeem the instruments referred to below. If the Financing is effected, Purchaser has delivered the Corporation shall apply the proceeds thereof (net of expenses) to Seller true pay or redeem as a appropriate the following instruments in the order of priority of and correct copies of on the basis set forth below:
(i) the executed commitment letter, dated as all fees and expenses of the date hereofFinancing and all accrued fees and expenses incurred in connection with the transactions contemplated by the Exchange Agreement;
(ii) all indebtedness for borrowed money of the Corporation and its Subsidiaries incurred on or after June 30, among Purchaser1998;
(iii) all indebtedness for borrowed money of the Corporation and its Subsidiaries (other than Service America Corporation and its Subsidiaries) incurred prior to June 30, SigmaTEK Systems1998;
(iv) indebtedness for borrowed money of Service America Corporation and its Subsidiaries incurred prior to June 30, LLC 1998 in an amount equal to 66.7% of the amount of indebtedness repaid pursuant to clause (“SigmaTEK”iii) above;
(v) all other indebtedness for borrowed money of Service America Corporation and its Subsidiaries; and
(vi) in accordance with the Financing Sources thereto (including all exhibits, schedules, priorities and annexes thereto, and other terms set forth in Section 2.3 of the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (Exchange Agreement. provided, however, that such the Corporation shall not consummate the Financing Commitment Documents may be redacted as if the proceeds thereof are not sufficient to economic and “flex” terms, none of which would reduce the amount pay all of the Financing to be funded on amounts described in the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Dateforegoing clauses (i), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”(ii), pursuant to which the Financing Sources party thereto have committed, subject to the terms (iii) and conditions set forth therein, to lend the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portion, the “Financing”iv). None of the Financing Commitments has been amended or modified prior to the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, as of the date of this Agreement, no such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect.
(b) Except for fee letters (complete copies of which have been provided If the Financing does occur and the proceeds thereof are not sufficient to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount fully pay all of the Financing amounts described or referred to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereof, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to clauses (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date), (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or), (iii), (iv), (v) and (vi) of paragraph (a), GECC agrees to convert all indebtedness owed by the Corporation and its Subsidiaries to GECC and its Affiliates into a subordinated note of the Corporation with market terms to be agreed between Blackstone and GECC (including the payment of interest at an initial rate of 10% per year, increasing by .5% every six months, up to a maximum interest rate of 14% per year), which terms shall be satisfactory to the knowledge of Purchaser, result financial institutions providing and/or arranging such Financing. Such interest shall be payable in the Financing being unavailable on the Closing Date, so long as the conditions cash unless objected to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV by such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated herebyfinancial institutions.
Appears in 1 contract
Sources: Stockholders' Agreement (Volume Services America Holdings Inc)
Financing. (a) As 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 obtain the proceeds of the date hereof, Purchaser has delivered Debt Financing on the terms and conditions described herein and to Seller true and correct copies of consummate the Debt Financing on the Closing Date. Such actions shall include the following: (i) maintaining in effect the executed commitment letterCommitment Letters; (ii) participation by senior management of Parent in, dated as and assistance with, the preparation of rating agency presentations and meetings with rating agencies; (iii) causing the Equity Financing to be consummated upon satisfaction of the applicable Financing Conditions at the time the Closing is required to occur pursuant to Section 2.3; (iv) taking into account the expected timing of the Marketing Period, satisfying on a timely basis all conditions applicable to Parent and Merger Sub in the Debt Commitment Letter; (v) negotiating, executing and delivering Debt Financing Documents that reflect the terms contained in the Debt Commitment Letter (including any “market flex” provisions related thereto) or on such other terms acceptable to Parent and its Financing Sources; and (vi) in the event that the conditions set forth in Section 7.2 (except for delivery of certificates and other deliverables pursuant to Section 7.2(a)(iii) and Section 7.2(e), all of which shall have been capable of being delivered on the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”the Closing should have occurred pursuant to Section 2.3) and the Financing Sources thereto Conditions (including all exhibitsother than those to be satisfied at funding) have been satisfied or, schedulesupon Closing and funding, and annexes theretorespectively, would be satisfied, and the executed fee letter associated therewith Closing is required to occur pursuant to Section 2.3, cause the financing providers to fund the Financing in an amount equal to the Required Amount (less the amount of any cash on hand which is to be applied in accordance with this Agreement). Parent shall use reasonable best efforts to enforce its rights under the Commitment Letters and referenced therein Debt Financing Documents, in the case of a Financing Failure Event. Parent shall give the Company prompt notice of any breach, repudiation, or threatened (collectively, in writing) breach of the “Commitment Letters (including any Financing Commitment Documents”Failure Event) (of which Parent or its Affiliates becomes aware; provided, however, that in no event will Parent or such Affiliate be under any obligation to disclose any information that is subject to attorney-client or similar privilege if Parent or such Affiliate cannot disclose such information in a way that would not waive such privilege. In the event that Parent or an Affiliate do not provide access or information in reliance on the preceding sentence, such Person shall provide notice to the Company that such access or information is being withheld and such Person shall use its reasonable best efforts to communicate, to the extent feasible, the applicable information in a way that would not waive such privilege. Merger Sub and Parent shall keep the Company reasonably informed on a current basis of the status of their efforts to consummate the Debt Financing. Without limiting its other obligations under this Section 6.10(a), if a Financing Commitment Documents may be redacted Failure Event occurs Parent shall (i) use reasonable best efforts to, as to economic and “flex” termspromptly as practicable, none of which would reduce obtain alternative debt financing in the Required Amount (less the amount of the Equity Financing and cash on hand permitted to be funded on applied to the Closing Date Required Amount under this Agreement) from the same or adversely affect other sources and which do not include terms and conditions to the conditionality or availability consummation of the Financing contemplated thereby on the Closing Date), such alternative debt financing that are materially less favorable (taken as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant a whole) to which the Financing Sources party thereto have committed, subject to Parent and Merger Sub than the terms and conditions set forth thereinin the Debt Commitment Letter (including the “flex” provisions of the Fee Letter); provided, however, for the avoidance of doubt, Parent shall not be required to lend execute any alternative Debt Commitment Letter (and related documents) or arrange for such alternative debt financing (x) on terms and conditions (including the amounts “flex” provisions of any related fee letter) which are materially less favorable (taken as a whole) unless otherwise determined by Merger Sub and Parent in their sole discretion, (y) having economic or conditionality terms less favorable than those set forth therein, a portion of which shall be used for in the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein Debt Commitment Letter (such portion, after giving effect to the “Financing”). None of the Financing Commitments has been amended or modified prior to flex” provisions) provided on the date of this Agreement or (z) pay any fees in excess of those contemplated by the Debt Commitment Letter, including the “flex” provisions of the related fee letters (whether to secure waiver of any manner that would adversely impact conditions contained therein or otherwise) and (ii) promptly provide the availability ofCompany with a true and complete copy of a new financing commitment. Parent shall not, without the prior written consent of the Company: (i) permit any amendment or modification to, or add additional any waiver of any provision or remedy under, the Debt Commitment Letter if such amendment, modification, waiver or remedy (w) adds new conditions precedent (or modifies any existing conditions in a manner adverse to Parent, Merger Sub or the Company or the transactions contemplated hereby) to the availability consummation of all or any portion of the Debt Financing, and(x) reduces the amount of the Debt Financing (together with the proceeds of the Equity Financing and any cash on hand permitted to be applied to the Required Amount under this Agreement) below the Required Amount, (y) adversely affects the ability of Merger Sub or Parent to enforce their rights against other parties to the Debt Commitment Letter as so amended, replaced, supplemented or otherwise modified, relative to the ability of Merger Sub and Parent to enforce their rights against such other parties to the Debt Commitment Letter as in effect on the date hereof or (z) taking into account the expected timing of the Marketing Period, could otherwise reasonably be expected to prevent or materially delay the consummation of the transactions contemplated hereby (provided, however, that, for the avoidance of doubt, Parent may amend the Debt Commitment Letter to add lenders, lead arrangers, book-runners, syndication agents or similar entities who had not executed the Debt Commitment Letter as of the date of this Agreement, no if the addition of such parties, individually or in the aggregate, would not reasonably be expected to prevent or materially delay the availability of the Debt Financing or the consummation of the contemplated transactions); or (ii) terminate the Debt Commitment Letter unless it is replaced, prior to or concurrently with the termination, with a new commitment that, were it structured as an amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated therebyexisting Debt Commitment Letter, would satisfy the requirements of this Section 6.10(a) (including the limitations on assignment set forth in this Section 6.10(a). Parent shall promptly deliver to the Company copies of any such amendment, modification, waiver or replacement. Neither Parent nor any of its Affiliates shall amend, modify, supplement, restate, substitute or replace the Equity Commitment Letters, other than to increase the amount of the funding commitment thereunder. Parent shall not consent to any assignment of rights or obligations under the Commitment Letters without the prior written approval of the Company, such approval not to be unreasonably withheld, conditioned or delayed. Notwithstanding anything to the contrary contained in this Agreement, nothing contained in this Section 6.10 shall require, and amendments in no event shall reasonable best efforts of Parent or joinders Merger Sub be deemed or construed to require, Parent or Merger Sub to seek equity financing from any source other than those counterparty to, in any amount in excess of, or on other terms and conditions different from, the Equity Commitment Letters. Upon the request of the Company, Parent shall use reasonable best efforts to confirm (y) with its financing sources their intent and ability to perform, and the availability of the Financing, under the Commitment Letters, subject only to satisfaction or waiver of the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof)Conditions, and (z) that neither it nor its financing sources are aware of any event or condition that could reasonably be expected to result in the failure of a Financing Condition. Parent represents that the Asset Contribution (as of defined in the Debt Commitment Letter) has occurred prior to the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereof, the Financing Commitments are in full force and effect with respect toAgreement, and are the legalParent agrees that it shall not, validdirectly or indirectly, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV take any action such that the condition set forth in Section 8.2(a3 of Exhibit D of the Debt Commitment Letter as and to the extent relating to the Asset Contribution (as defined in the Debt Commitment Letter) is shall not be satisfied.
(b) Prior to the Closing, the performance by Seller of its obligations under this Agreement Company shall, and the satisfaction shall cause each of the other conditions set forth Acquired Companies to, and shall use their reasonable best efforts to cause their Affiliates to, at Parent’s sole expense, cooperate in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any connection with the arrangement of the conditions to Debt Financing as may be reasonably requested by Parent or Merger Sub in connection with the Financing contemplated by arrangement of the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains the Debt Financing or any other alternative financing for or related they may seek in order to any of consummate the transactions contemplated hereby, including: (i) preparing and furnishing the Required Financial Information and all other financial and pertinent information and disclosures regarding the Acquired Companies (including their businesses, operations, financial projections and prospects) as may be reasonably requested by Parent or Merger Sub as promptly as reasonable practicable (provided that neither the Company nor the Acquired Companies shall be responsible in any manner for providing the information relating to the proposed debt and equity capitalization that is required for any pro formas or projected financial information identified therein), (ii) participating in a reasonable number of meetings, presentations, road shows, due diligence sessions (including requesting accountants to participate in such due diligence sessions), drafting sessions and sessions with rating agencies in connection with the Debt Financing in connection with the Debt Financing, and assisting with the preparation of materials for rating agency presentations, road show presentations, bank information memoranda (including, to the extent necessary, an additional bank information memorandum that does not include material non-public information) and similar documents required in connection with the Debt Financing; (iii) reasonably assisting Parent and Merger Sub in procuring a public corporate credit rating and a public corporate family rating in respect of the relevant borrower or issuer under the Debt Financing and public ratings for the Debt Financing or notes to be offered in connection with the Debt Financing; (iv) obtaining customary authorization letters with respect to the bank information memoranda from a senior officer of the Acquired Companies (provided, that such authorization letters shall not include (y) any indemnification provisions or (z) any representations or warranties regarding the status of information as non-public information); (v) at least five (5) Business Days prior to Closing, providing all documentation and other information about the Acquired Companies that is reasonably requested by the Financing Sources and the Financing Sources reasonably determine is required by applicable “know your customer” and anti-money laundering rules and regulations including the USA PATRIOT Act, to the extent requested by Parent or Merger Sub in writing at least ten (10) Business Days prior to Closing; and (vi) to cause the other Acquired Companies and their respective representatives to, provide to Parent and Merger Sub, all other reasonable cooperation reasonably requested by Parent that is necessary in connection with the Debt Financing; provided, however, that nothing herein shall require such cooperation to the extent it would interfere unreasonably with the business or operations of the Acquired Companies; provided, further, that no Acquired Company, nor any of its respective non-continuing directors or non-continuing officers shall be required to take any action in the capacity as a member of the board of directors of such Acquired Company to authorize or approve the Debt Financing; provided, further, that no Acquired Company shall be required to commit to take any action that is not contingent upon the Closing (including the entry into any agreement) or that would be effective prior to the Effective Time (except, in any case, the authorization letter contemplated by clause (iv) above). No Acquired Company shall be required to pay any commitment or other similar fee or agree to provide any indemnity in connection with the Debt Financing that would be payable or would become effective prior to the Effective Time. No liabilities, costs or expenses incurred by any Acquired Company in taking any of the actions required to be taken by it pursuant to this Section 6.10(b) will be treated as a current liability for purposes of determining the Closing Net Working Capital Amount or included in the Closing Debt or the Unpaid Company Transaction Expenses. Parent shall, promptly upon request by the Company, reimburse the Company for all reasonable out-of-pocket costs incurred by the Acquired Companies in connection with this Section 6.10(b). The Company hereby consents to the reasonable use of the Acquired Companies’ logos in connection with the Financing, provided that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Acquired Companies or the reputation or goodwill of the Acquired Companies or any of their logos and on such other customary terms and conditions as the Company shall reasonably impose. Parent shall indemnify and hold harmless, each Acquired Company, and its respective officers, employees and representatives, from and against any and all liabilities or losses suffered or incurred by them in connection with the arrangement of Debt Financing and any information utilized in connection therewith in each case except to the extent the relevant amounts result from the bad faith, gross negligence or willful misconduct of, or the inaccuracy of any information provided by, the Acquired Companies or any of their respective Related Parties.
Appears in 1 contract
Sources: Merger Agreement (Allscripts Healthcare Solutions, Inc.)
Financing. (a) As of the date hereofThe Purchaser shall use its reasonable efforts to take, Purchaser has delivered or cause to Seller true be taken, all actions and correct copies of to do, or cause to be done, all things necessary or advisable to (i) satisfy on a timely basis all material terms, conditions, material representations and warranties applicable to the executed Purchaser set forth in the Debt Commitment Letter (or any replacement commitment letterletter to the extent contemplated by Section 7.09(b)) that are within its control, dated (ii) maintain in effect the Debt Commitment Letter (or any replacement commitment letter to the extent contemplated by Section 7.09(b)), negotiate and enter into definitive agreements with respect thereto on the terms and conditions contemplated by the Debt Commitment Letter (or any replacement commitment letter contemplated by Section 7.09(b)) or on other terms acceptable to the Company not less favorable to the Purchaser, not in violation of this Section 7.09(a), and which such other terms (x) would not be reasonably expected to materially delay or prevent the Closing and (y) are not materially less favorable to the Purchaser and Merger Sub with respect to conditionality than the terms in the Debt Commitment Letter in effect as of the date hereofof this Agreement, among (iii) subject to the satisfaction of the conditions set forth in Section 3.01 (Conditions to the Purchaser’s and Merger Sub’s Obligations), SigmaTEK Systemsenforce its rights under the Debt Commitment Letter (or any replacement commitment letter to the extent contemplated by Section 7.09(b)) (including in the event that all conditions to the Debt Commitment Letter (or any replacement commitment letter to the extent contemplated by Section 7.09(b)) have been satisfied, LLC using its reasonable efforts to cause the lenders and the other Persons providing such Debt Financing to fund on the Closing Date the Debt Financing required to consummate the transactions contemplated herein which shall include taking enforcement action to cause such lenders and the other Persons providing such Debt Financing to fund such Debt Financing except to the extent the Purchaser determines in good faith based on advice of outside counsel that there is no reasonable basis for such action as such concept is used in Rule 11 of the Federal Rules of Civil Procedure), and (“SigmaTEK”iv) subject to the satisfaction of the conditions set forth in Section 3.01 (Conditions to the Purchaser’s and Merger Sub’s Obligations) and conditions to closing set forth in the Financing Sources thereto Debt Commitment Letter (including all exhibitsor any replacement commitment letter to the extent contemplated by Section 7.09(b)), schedules, and annexes thereto, and consummate the executed fee letter associated therewith and referenced therein (collectively, Financings at the “Financing Commitment Documents”) (Closing; provided, however, that such Financing Commitment Documents may be redacted as to economic if funds in the amounts and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date terms set forth in the Debt Commitment Letter (or adversely affect any replacement commitment letter to the conditionality or availability of extent contemplated by Section 7.09(b)) become unavailable to the Financing contemplated thereby Purchaser on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject to the terms and conditions set forth therein, the Purchaser shall use its reasonable efforts to lend obtain alternative debt financing (the “Alternative Financing”) to the extent available in amounts and otherwise on terms and conditions no less favorable in the aggregate to the Purchaser than as set forth thereinin the Debt Commitment Letter (or any replacement commitment letter to the extent contemplated by Section 7.09(b)); provided, a portion of which that if the Purchaser proceeds with Alternative Financing, it shall be used for subject to the purposes same obligations as set forth in this Section 7.09(a) with respect to the Debt Financing.
(b) The Purchaser shall keep the Company apprised of funding material developments relating to the purchase Debt Financing and shall give the Company prompt notice of any material adverse change with respect to such Debt Financing. The Purchaser shall not replace, amend or waive the Debt Commitment Letter or any provision of the Purchased Equity and fee letter referenced in the other transactions contemplated by this Agreement and paying Debt Commitment Letter without the related fees and expenses specified herein (Company’s prior written consent if such portionreplacement, amendment or waiver reduces the “Financing”). None aggregate amount of the Debt Financing Commitments has been amended or modified prior to amends the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of Debt Financing in a manner that would reasonably be expected to materially delay or prevent the Financing, and, Closing and the terms are not materially less favorable to the Purchaser and Merger Sub with respect to conditionality than the terms in the Debt Commitment Letter in effect as of the date of this Agreement, no such . The Purchaser shall provide to the Company copies of any commitment letter associated with a replacement Debt Financing or Alternative Financing as well as any amendment or modification is contemplated waiver of any debt commitment letter (other than, for including the avoidance of doubt, amendments Debt Commitment Letter).
(c) Subject to the draft credit agreement contemplated thereby, terms and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date conditions of this Agreement and the commitments contained applicable terms and conditions of the Equity Financing Letter, each of the Purchaser and Merger Sub shall take (or cause to be taken) all actions and do (or cause to be done) all things necessary or advisable to (i) obtain the Equity Financing contemplated by the Equity Commitment Letter, (ii) maintain in effect the Financing Commitments have not been withdrawn or rescinded Equity Commitment Letter in any respect.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” accordance with its terms, none of which would reduce the amount of the Financing to be funded (iii) satisfy on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the timely basis all conditions applicable to the funding of the Financing or the transactions contemplated hereby other than as expressly Purchaser and Merger Sub set forth in the Financing Commitments delivered to Seller prior Equity Commitment Letter that are within its control, (iv) subject to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereof, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1therein, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of consummate the conditions to the Equity Financing contemplated by the Financing Commitments applicable Equity Commitment Letter at the Closing, and (v) fully enforce the Guarantors’ obligations (and the rights of the Purchaser and Merger Sub) under the Equity Commitment Letter.
(d) Neither the Purchaser nor Merger Sub shall amend, alter or waive, or agree to it will 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. The Purchaser shall promptly (and in any event within one (1) Business Day) notify the Company of (i) the expiration or termination (or attempted or purported termination, whether or not be satisfied on valid) of the Closing Date. Purchaser affirms that it is not a condition Equity Commitment Letter, or (ii) any refusal by any Guarantor to the Closing provide or any of its other obligations under this Agreement that Purchaser obtains stated intent by any Guarantor to refuse to provide the Financing or any other full financing for or related to any of contemplated by the transactions contemplated herebyEquity Commitment Letter.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Hillman Companies Inc)
Financing. (ai) As of the date hereof, Purchaser Parkway has delivered to Seller true Cousins true, correct and correct copies of (i) the executed commitment letter, dated as of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) and the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject to the terms and conditions set forth therein, to lend the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portion, the “Financing”). None of the Financing Commitments has been amended or modified prior to the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, andcomplete copies, as of the date of this Agreement, of executed commitment letters and any fee letters related thereto (together, and as the same may be amended as permitted by Section 5.14(a), the “Debt Commitment Letters”) between Parkway and the financial institutions identified therein (including any lenders who become party thereto by joinder, the “Lenders”) to provide, subject to the terms and conditions therein, debt financing to a Parkway Subsidiary (“Borrower”) in the amounts set forth therein (collectively, as may be modified or replaced in accordance with Section 5.14(a), the “Debt Financing”). As of the date of this Agreement, (A) the Debt Commitment Letters have not been amended or modified (subject to any flex provisions in any fee letter referred to in the previous sentence), and no such amendment or modification is contemplated and (other than, for B) the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, obligations and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date of this Agreement the commitments contained in the Financing Commitments Debt Commitment Letters have not been withdrawn withdrawn, modified or rescinded in any respect.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK Parkway and/or its Subsidiaries have fully paid (or are, substantially concurrently with the execution and delivery hereof, fully paying) any and all commitment fees or other fees in connection with required by the Financing Commitments terms of the Debt Commitment Letters that are payable on or prior to the date hereof. As of the date hereof, the Financing Commitments are in full force each Debt Commitment Letter is (x) a valid and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK obligation of Parkway and, to the knowledge of PurchaserParkway, of each of the other parties thereto and (except, y) in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, full force and general principles of equity effect.
(regardless of whether such enforceability is considered in a proceeding in Law or equity)). ii) As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereofthis Agreement, no event has occurred whichthat, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK Parkway or, to the knowledge of Parkway, any other parties thereto, or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, (ii) constitute a any failure to satisfy a condition precedent to precedent, under the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfiedDebt Commitment Letters. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfiedthis Agreement, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any Debt Commitment Letters contain all of the conditions precedent to the obligations of the parties thereunder to make the Debt Financing contemplated by the Financing Commitments applicable available to it will not be satisfied Borrower on the Closing Dateterms therein and all of the provisions that would permit the Lenders to reduce the total amount of the Debt Financing. Purchaser affirms that it is not a condition As of the date of this Agreement, other than the Debt Commitment Letters, there are no side letters or other Contracts or arrangements to the Closing which Parkway or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or Affiliates is a party related to any the funding of the transactions contemplated herebyfull amount of the Debt Financing.
Appears in 1 contract
Financing. (a) As of Each Parent Entity shall use, and shall cause their respective Affiliates to use, reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate and obtain the date hereofFinancing on the terms and subject only to the conditions (including the market flex provisions set forth in the Redacted Fee Letters) set forth in the Financing Letters, Purchaser has delivered including using reasonable best efforts to Seller true and correct copies of (i) maintain in effect and comply with the executed commitment letterFinancing Letters (other than any termination, dated amendment, supplement, modification or waiver that would not constitute a Prohibited Amendment), (ii) negotiate and enter into definitive agreements with respect to the Debt Financing and the Preferred Equity Financing in an amount necessary to pay the Required Financing Amount as and when due on the terms and subject only to the conditions (including the market flex provisions) set forth in the applicable Debt Commitment Letters and the Preferred Equity Commitment Letters, respectively, (iii) satisfy (and cause its Affiliates to satisfy) on a timely (taking into account the Marketing Period) basis all conditions applicable to the applicable Parent Entities and their respective Affiliates in the Financing Letters and the definitive agreements related thereto that are within their control (or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to the applicable Parent Entities contained in any such Financing Letter or such definitive agreements related thereto), including preparing in a timely manner the pro forma financial statements required pursuant to (A) paragraph 10 of Exhibit E of the International Debt Commitment Letters, (B) paragraph 10 of Exhibit C of each of the U.S. Retail Debt Commitment Letters and (C) paragraph 8 of Exhibit B of the PropCo Commitment Letter, in each case as in effect as of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”iv) and consummate the Financing Sources thereto at or prior to the Initial Closing Date (including all exhibits, schedules, and annexes thereto, and in the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount case of the Financing contemplated by the Specialty Pharmacy Commitment Letters or to be funded on the Initial Closing Date under the Equity Funding Letters) or adversely affect the conditionality Merger Closing Date (with respect to all other Financings), (v) enforce its rights under the Financing Letters and the definitive agreements related to such Financing and (vi) comply with its covenants and other obligations under the Financing Letters and the definitive agreements related to the Financing, including by depositing cash or an acceptable letter of credit as a “Special Reserve” with respect to the Financing described in the PropCo Commitment Letters. Without limiting the generality of the foregoing, (x) in the event that all conditions contained in the Financing Letters or the definitive agreements with respect thereto (other than the consummation of the Merger, those conditions that by their nature are to be satisfied or waived at the Initial Closing or the Merger Closing, as applicable, and those conditions the failure of which to be satisfied is attributable to a breach by any Parent Entity of its representations, warranties, covenants or agreements contained in this Agreement, and other than, with respect to the applicable Debt Financing, the availability of the applicable Equity Financing contemplated thereby and the applicable Preferred Equity Financing, with respect to the applicable Preferred Equity Financing, the availability of the applicable Debt Financing and the applicable Equity Financing, and, with respect to the applicable Equity Financing, the availability of the applicable Debt Financing and the applicable Preferred Equity Financing) have been satisfied, each Parent Entity shall fully enforce the counterparties’ obligations under the Financing Letters and cause the Equity Financing Sources to, and shall use reasonable best efforts to cause the Debt Financing Sources and the Preferred Equity Financing Sources to, comply with their respective obligations under the Financing Letters to fund an amount of Financing no less than the Required Initial Closing Amount on the Initial Closing Date and the Required Financing Amount on the Merger Closing Date and (y) on or prior to the earlier of (A) three (3) Business Days prior to the allocation of any component of the Debt Financing not denominated in U.S. dollars and (B) three (3) Business Days prior to the Merger Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “applicable Parent Entities shall use their reasonable best efforts to enter into foreign currency arrangements to hedge against the risk of changes in foreign currency rates with respect to such component of the Debt Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject ensure continued access to the terms Required Financing Amount at the Merger Closing. No Parent Entity shall, and conditions set forth thereinshall not permit any of its respective Affiliates to, to lend the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by take any action not otherwise required under this Agreement and paying the related fees and expenses specified herein (such portionthat is a breach of, the “Financing”). None or would result in termination of, any of the Financing Commitments has been amended Letters, each Parent Entity and the Equity Financing Sources shall not, without the prior written consent of the Company, agree to or modified prior permit any termination of or amendment, supplement or modification to be made to, or grant any waiver of any provision under, the Financing Letters or the definitive agreements relating to the date Financing, if such termination, amendment, supplement, modification or waiver would, or would be reasonably likely to, (A) reduce (or could have the effect of this Agreement in reducing) the aggregate principal amount of any manner that would portion of the Financing (including by increasing the amount of fees to be paid or original issue discount) below the amount necessary to fund the Required Financing Amount, (B) adversely impact the availability ofability of any Parent Entity, as applicable, to enforce its rights against other parties to the Financing Letters or the definitive agreements with respect to the Financing, or add (C)(1) 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, andor (2) otherwise expand, amend or modify any other provision of the Financing Letters in a manner that could reasonably be expected to delay, reduce or prevent or make less likely to occur the funding of the Financing (or satisfaction of the conditions to the Financing) on the Initial Closing Date or the Merger Closing Date, as of applicable (taking into account the date of this AgreementMarketing Period) (the amendments described in the foregoing clauses (A), no such amendment or modification is contemplated (other thanB), for and (C), the avoidance of doubt, amendments “Prohibited Amendments”). Parent shall deliver to the draft credit agreement contemplated therebyCompany true and complete copies of any amendment, and amendments modification, supplement, consent, waiver or joinders replacement to or under any Financing Letter or the definitive agreements relating to the Financing Commitments solely promptly upon execution thereof other than any amendments or modifications to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date of this Agreement the commitments contained in the Financing Commitments terms that have not been withdrawn or rescinded in redacted under any respectRedacted Fee Letter.
(b) Except for fee letters Each Parent Entity shall keep the Company informed on a current basis and in reasonable detail, upon reasonable request by the Company, of the status of its efforts to arrange the Debt Financing and the Preferred Equity Financing and provide to the Company drafts (complete reasonably in advance of execution) and thereafter complete, correct and executed copies of which have been provided to Seller; providedthe material definitive documents for the Debt Financing and the Preferred Equity Financing. The Parent Entities shall give the Company prompt notice (i) of any actual, howeverthreatened or potential breach, that default (or any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereof, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred whichthat, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a give rise to any default or breach on the part breach), termination, cancellation or repudiation by any party to any of SigmaTEK or Purchaser under the Financing Commitment Documents Letters or definitive documents related to the Financing of which any Parent Entity becomes aware, (ii) of the receipt of any written notice or other written communication from any Financing Source with respect to any (A) actual, threatened or potential breach, default, termination, cancellation or repudiation by any party to any of the Financing Letters or any definitive document related to the Financing of any provisions of the Financing Letters or any definitive document related to the Financing or (B) material dispute or disagreement between or among any parties to any of the Financing Letters or any definitive document related to the Financing with respect to the conditionality or amount of the Financing or the obligation to fund the Financing or the amount of the Financing to be funded at the Initial Closing Date or the Merger Closing, as applicable (but excluding ordinary course negotiations), (iii) of the occurrence of an event or development that would impair could reasonably be expected to adversely impact the availability ability of the Parent Entities or Merger Sub to obtain all or any portion of the Required Financing Amount and (iv) if for any reason any Parent Entity believes in good faith that it will not be able to obtain all or any portion of the Financing on the Closing Dateterms or in the manner contemplated by the Financing Letters (taken as a whole) or the definitive documents related to such Financing, including if any Parent Entity has any reason to believe that it will be unable to satisfy (iior obtain a waiver of), on a timely basis, any term or condition of any Financing Letter or any definitive document related to the foregoing; provided that in no event shall the Parent Entities or their Affiliates be under any obligation to disclose any information pursuant to clauses (i) constitute through (iv) that would waive the protection of attorney-client or similar privilege if such party shall have used 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 two Business Days of the date the Company delivers to Parent or Merger Sub a written request, the applicable Parent Entities shall provide any information reasonably requested by the Company relating to any circumstance referred to in the immediately preceding sentence, subject to the limitations set forth therein. If any portion of the Debt Financing or the Preferred Equity Financing required to fund the Required Financing Amount becomes unavailable on the terms and conditions (including any applicable market flex provisions) contemplated by the Debt Commitment Letters or the Preferred Equity Commitment Letters, as applicable (other than as a result of the failure to satisfy the conditions set forth in Section 7.3), and alternative financing (so long as the terms thereof are of the type that would not constitute a condition Prohibited Amendment) or an increase in the applicable Equity Financing or the applicable Debt Financing or Preferred Equity Financing, as applicable, is not then made available in an amount equal to such portion, and such portion is required to fund the Required Financing Amount, Parent shall promptly notify the Company in writing and Parent and Merger Sub shall use their reasonable best efforts to arrange and obtain in replacement thereof, and negotiate and enter into definitive agreements with respect to, alternative financing from alternative sources in an amount sufficient to fund the Required Financing Amount in order to consummate the Transactions on terms and conditions (including market flex provisions) not materially less favorable, taken as a whole, to the Parent Entities (or their respective Affiliates) than the terms and conditions set forth in the Debt Commitment Letters or the Preferred Equity Commitment Letters, as applicable, as promptly as practicable following the occurrence of such event but no later than the final day of the Marketing Period (provided that such other terms and conditions would not reasonably be expected to (x) impose any new or additional conditions precedent to the availability of the Financing on at the part Initial Closing or the Merger Closing, as applicable, or (y) materially impair, prevent or delay the consummation of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on or the Closing Dateconsummation of the Transactions); provided, so long as that in no event will the conditions reasonable best efforts of the Parent Entities be deemed or construed to require the Parent Entities or their Affiliates to (A) pay fees, interest rates or dividends applicable to the Financing in excess of those contained in the Debt Commitment Letters (including the market flex provisions) or Preferred Equity Commitment Letter, as applicable, or agree to “market flex” terms, less favorable to the Parent Entities than the corresponding market flex terms contained in or contemplated by the Debt Commitment Letters or (B) enter into any alternative financing terms the terms of which are satisfied materially less favorable to the Parent Entities than the terms contained in the Debt Commitment Letters or the Preferred Equity Commitment Letters, as applicable, on the date hereof (taken as a whole). In furtherance of and each condition set forth not in limitation of the foregoing, in the event that (1) any portion of the Debt Financing anticipated under the Debt Commitment Letters to be structured as a high yield bond financing is unavailable, regardless of the reason therefor, and such amount is not funded through a securities demand under the Debt Commitment Letters, (2) all conditions contained in Section 8.2 7.1 and Section 7.3 have been satisfied or waived (other than (x) any such conditions that by their nature are to be satisfied at the Initial Closing or the Merger Closing, as applicable, but subject to the satisfaction or waiver of such conditions at the Initial Closing or the Merger Closing, as applicable, and (y) those conditions the failure of which to be satisfied is satisfied. As attributable to a breach by Parent or Merger Sub of their representations, warranties, covenants or agreements contained in this Agreement) and (3) a bridge facility contemplated by the Debt Commitment Letters (or an alternative bridge facility or other financing obtained in accordance with this Section 6.11(b)) is available on the terms described in the Debt Commitment Letters, then the Parent Entities shall cause the applicable Debt Financing Sources to fund such bridge financing in accordance with the terms of the date hereof, assuming Debt Commitment Letters and the accuracy proceeds shall be used in lieu of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction affected portion of the high yield bond financing. The Parent Entities shall deliver to the Company true and complete copies of all contracts, agreements or other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser arrangements (including Redacted Fee Letters) pursuant to which any such alternative source shall have no reason committed to believe that provide any portion of the conditions Debt Financing. For purposes of this Section 6.11, (x) references to the Financing “Financing” shall include the financing contemplated by the Financing Commitments applicable Letters as permitted to it will not be satisfied on amended, modified, supplemented or replaced by this Section 6.11, (y) references to the “Debt Commitment Letters” and the “Preferred Equity Commitment Letters” shall include such documents as permitted to be amended, modified, supplemented or replaced by this Section 6.11 and (z) references to “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letters and references to “Preferred Equity Financing” shall include the preferred equity financing contemplated by the Preferred Equity Commitment Letters, in each case as permitted to be amended, modified, supplemented or replaced by this Section 6.11.
(c) Prior to the Merger Closing Date. Purchaser affirms that it is not a condition , the Company shall use its reasonable best efforts to provide, and to cause its Subsidiaries to provide, to the Closing or any of its other obligations under this Agreement that Purchaser obtains Parent Entities, in each case at Parent Entities’ sole cost and expense, such reasonable cooperation as is customary and reasonably requested by the Financing or any other financing for or related to any Parent Entities in connection with the arrangement, syndication and consummation of the transactions contemplated hereby.Debt Financing and the Preferred Equity Financing (provided that such request is made on reasonable notice and reasonably in advance of the Merger Closing), including using its (x) reasonable best efforts to (i) furnish the applicable Parent Entities (which the applicable Parent Entities may then furnish to their applicable Debt Financing Sources) (a) all Required Financial Information that is Compliant (and provide such Required Financial Information described in clause (a) of the definition thereof with respect to the fiscal years ended August 31, 2024 and 2023 that is Compliant as promptly as reasonably practicable after the date hereof and such Required Financial Information described in clause (a) of th
Appears in 1 contract
Financing. (a) As Purchaser shall be entitled to encumber the Hotels or any of them with one or more Authorized Mortgages which are expressly subordinate to this Agreement or in connection with which the date hereof, Purchaser has delivered to Seller true following terms and correct copies of conditions are satisfied:
(i) the executed commitment letterloan or other debt secured by such Authorized Mortgage shall not be cross-collateralized with other property or hotels which are not managed or franchised by Manager, dated as IHG or their respective Affiliates;
(ii) the principal amount secured by such Authorized Mortgage shall not exceed the sum of seventy-five percent (75%) (or, if less than four (4) Pooled FF&E Hotels secure such principal amount, sixty-five percent (65%)) of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) and the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount sum of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject to the terms and conditions set forth therein, to lend the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portion, the “Financing”). None of the Financing Commitments has been amended or modified prior to the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, fair market value as of the date of this Agreement, no the granting of such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as Authorized Mortgage of the date hereof), Pledged Hotels and the other properties securing such principal amount;
(iii) as of the date of the granting of such Authorized Mortgage, the Debt Service Coverage Ratio associated with such loan or debt secured thereby shall not be less than (i) 1.4 if fewer than four (4) Pooled FF&E Hotels secure such loan or other debt or (ii) 1.3 if four (4) or more Pooled FF&E Hotels secure such loan or other debt; and
(iv) the holder of such Authorized Mortgage shall execute and deliver to Manager (Manager agreeing to likewise execute and deliver to such holder) a so-called subordination, non-disturbance and attornment agreement which shall provide that:
(A) this Agreement and Manager’s rights hereunder are subject and subordinate to the commitments contained Authorized Mortgage, the lien thereof, the rights of the holder thereof and to any and all advances made thereunder, interest thereon or costs incurred in connection therewith;
(B) so long as this Agreement is in full force and effect and there exists no Manager Default which has not been cured within any applicable notice or grace period, Manager’s rights under this Agreement shall not be disturbed by reason of such subordination or by reason of foreclosure of such Authorized Mortgage or receipt of deed in lieu of foreclosure;
(C) Manager shall attorn to the holder or the purchaser at any such foreclosure or the grantee of any such deed (each, a “Successor Purchaser”);
(D) in the Financing Commitments have event of such attornment, the terms of this Agreement binding on Purchaser and Manager shall continue in full force and effect as a direct agreement between such Successor Purchaser and Manager, upon all the terms, conditions and covenants set forth herein, except that the Successor Purchaser shall not been withdrawn be (1) bound by any payment of Owner’s Fixed Priority, Owner’s Percentage Priority or rescinded the Residual Distribution in advance of when due; (2) bound by any amendment or modification of this Agreement made after the date that Manager first had written notice of such Authorized Mortgage without the consent of the holder thereof; (3) liable in any respectway to Manager for any act or omission, neglect or default on the part of Purchaser or Owner under this Agreement; (4) obligated to perform any work or improvements to be done by Purchaser or Owner or to make any advances except for those advances to be made pursuant to Section 5.2(c) from and after the date on which such Successor Purchaser acquired the Hotel(s); or (5) subject to any counterclaim or setoff which theretofore accrued to Manager against Purchaser or Owner;
(E) In the event of a casualty or condemnation affecting any Pledged Hotel which does not result in the termination of this Agreement with respect to such Pledged Hotel, the net insurance proceeds or Award shall be applied to the restoration of such Hotel as herein provided; and
(F) Such other terms as are customary for similar agreements.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce In the amount event less than all of the Financing Hotels are to secure the loan or other debt secured by an Authorized Mortgage, Owner shall have the right to cause the Pledged Hotels to be funded managed pursuant to a separate management agreement which agreement shall be for a term equal to the unexpired portion of the Term and otherwise on substantially the same terms of this Agreement except as otherwise provided herein, provided that the Pledged Hotels in the aggregate and the remaining Hotels in the aggregate shall have Priority Coverage Ratios for the 12-month period ending on the Closing Date or adversely affect the conditionality or availability last day of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller month next prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees on which such Authorized Mortgage is granted equal to each other or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereof, the Financing Commitments are in full force and effect with respect equal to, and are the legalor greater than, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated hereby1.
Appears in 1 contract
Sources: Management Agreement (Hospitality Properties Trust)
Financing. (a) As of the date hereof, Purchaser Parent has delivered to Seller true the Company true, accurate and correct complete copies of (i) the executed fully‑executed debt commitment letter, dated as of the date hereofExecution Date, among Purchaserbetween Parent and Regions Bank and Regions Bank Capital Markets, SigmaTEK Systemsa division of Regions Bank (collectively, LLC (the “SigmaTEKLender”) and (ii) the Financing Sources thereto fully‑executed fee letter associated therewith (provided that 37 provisions in the fee letter related to fees, pricing, and other economic terms, including in respect of the economic terms of any “market flex” provisions, but only to the extent not affecting conditionality, may be redacted (such commitment letter, together with all exhibits, schedules, and annexes theretoannexes, and supplements thereto and the executed fee letter associated therewith and referenced therein (collectivelyletter, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted each as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified replaced in accordance with the terms hereofSection 5.8, collectively, the “Debt Financing CommitmentsCommitment”), pursuant to which which, upon the Financing Sources party thereto have committed, terms and subject to the terms and conditions set forth therein, the Lender has agreed to lend the amounts set forth therein, a portion of which shall be used therein (the “Debt Financing”) for the purposes purpose of funding the purchase of the Purchased Equity and the other transactions Transactions as contemplated by this Agreement and paying the related fees and expenses specified herein (such portionexpenses. As of the Execution Date, the “Financing”). None of the Debt Financing Commitments Commitment has not been amended amended, restated or otherwise modified prior or waived and, to the date Knowledge of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, andParent, as of the date of this AgreementExecution Date, no such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date of this Agreement the respective commitments contained in the Debt Financing Commitments Commitment have not been withdrawn withdrawn, terminated or rescinded in any respect.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there . There are no side letters or other contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions arrangements related to the funding or investing, as applicable, of the Debt Financing or the transactions contemplated hereby other than as expressly set forth in the Debt Financing Commitments Commitment delivered to Seller the Company prior to the date hereofExecution Date. Purchaser and SigmaTEK have Parent has (or caused to be) fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable required to be paid pursuant to the terms of the Debt Financing Commitment on or prior to the date hereof. As Execution Date, and will pay (or cause to be paid) in full any such amounts that are required to be paid pursuant to the terms of the date hereof, Debt Financing Commitment on or before the Closing. The Debt Financing Commitments are Commitment is in full force and effect with respect to, and are is the legal, valid, binding and enforceable obligations of, Purchaser of Parent and SigmaTEK and(in the case of the Debt Financing Commitment, to the knowledge Knowledge of Purchaser, Parent) each of the other parties thereto (exceptsubject to the effect of any laws relating to bankruptcy, in each case, as such enforceability may be limited by applicable bankruptcyreorganization, insolvency, reorganizationmoratorium, moratorium fraudulent conveyance or other preferential transfers, or similar Laws laws relating to or affecting the enforcement of creditors’ rights generallygenerally and subject, and as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding Proceeding in Law equity or equityat law)). As of the date hereof, there There are no conditions precedent or other contingencies related to the funding of Lender’s obligation to fund the full amount of the Debt Financing, other than as expressly set forth in the Debt Financing Commitment Documents delivered to Seller prior to the date hereofCommitment. As of the date hereofExecution Date, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK Parent or Purchaser (to the Knowledge of Parent) any other party thereto under the Debt Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, (ii) constitute or a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, Parent under the Debt Financing Commitment. Assuming (iiii) to the knowledge satisfaction of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 7.1 and Section 7.2 and (ii) the Debt Financing is satisfied. As of funded in accordance with the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfiedDebt Financing Commitment, the performance Debt Financing, together with Parent’s available cash on hand, cash equivalents and marketable securities, will be sufficient for Parent to make those payments that are payable by Seller of its obligations under Parent in accordance with this Agreement Agreement, including Section 2.12 and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe those payments that any of the conditions to the Financing contemplated are payable by the Financing Commitments applicable to it will not be satisfied Parent on the Closing Date. Purchaser affirms Each of Parent and Merger Sub acknowledges and agrees that it the obtaining of the Debt Financing is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated herebyClosing.
Appears in 1 contract
Financing. (a) As Verizon shall have the right to designate, in consultation with the Company, the final form of the date hereofSpinco Securities and related agreements (including registration rights arrangements and indenture) embodying the terms set forth in Exhibit C of the Distribution Agreement and to prepare the documents related thereto, Purchaser has delivered to Seller true and correct copies of provided that (i) the executed commitment letterCompany shall have the right and obligation, dated as in consultation with Verizon, to negotiate and approve covenants that are generally consistent with then current market practice for 144A debt offerings and economic terms of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) Spinco Securities and the Financing Sources thereto related agreements (including all exhibits, schedules, registration rights arrangements and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”indenture) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount are not specified on Exhibit C of the Financing Distribution Agreement as long as such covenants and economic terms are consistent with Exhibit C of the Distribution Agreement and shall allow the Spinco Securities to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject to the terms and conditions set forth therein, to lend the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein valued at par upon issuance (such portion, the “Financing”). None of the Financing Commitments has been amended or modified prior to the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, as of the date of this Agreement, no such amendment or modification is contemplated (other thanincluding, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as for purposes of the date hereof), Debt Exchange if Verizon elects to consummate such Debt Exchange at the time of Closing) and as allow for the timely consummation of the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in Debt Exchange (if elected by Verizon) and (ii) any respect.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount other material terms of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser Spinco Securities and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments related agreements that are payable on or prior to the date hereof. As of the date hereof, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited not addressed by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to clause (i) constitute a default of this Section 7.20(a) or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability Exhibit C of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent Distribution Agreement shall be subject to the availability joint approval of the Financing on parties, acting reasonably. For the part avoidance of SigmaTEK or Purchaser ordoubt, (iii) if Verizon elects to consummate the Debt Exchange, it shall have the sole right to structure the arrangements relating thereto with underwriters, arrangers and other third parties relating to the knowledge of Purchaser, result in Debt Exchange; provided that Verizon shall keep the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV Company reasonably updated regarding such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated herebyarrangements.
Appears in 1 contract
Financing. (a) As of Prior to the date hereofClosing Date, Purchaser has delivered the Company will use commercially reasonable efforts, and will cause its Subsidiaries to Seller true use commercially reasonable efforts, and correct copies of will use commercially reasonable efforts to cause their respective Representatives, to, in each case at Purchaser’s sole expense, (i) provide such cooperation (including with respect to timeliness) in connection with the executed commitment letter, dated as arrangement of the date hereof, among Purchaser, SigmaTEK Systems, LLC ’s financing referred to in Section 6.5 (“SigmaTEK”) and the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”together with any successor financing) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject to the terms and conditions set forth therein, to lend the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portion, the “Financing”), which is expected to the take the form of a syndicated term loan facility, as may be reasonably requested by Purchaser, including using commercially reasonable efforts in:
(i) furnishing, or using commercially reasonable efforts to cause third parties to furnish, the Purchaser and the Debt Financing Sources with financial and other pertinent business and other pertinent information, documents and materials regarding the Company and its Subsidiaries as may be reasonably requested by the Purchaser and its Debt Financing Sources in connection with the Financing;
(ii) assisting the Purchaser and its Debt Financing Sources in the preparation of customary marketing material for the Financing and materials and financial and other information for rating agency and lender presentations with respect to information regarding the Company and its Subsidiaries; **** Confidential Treatment has been requested for certain redacted provisions of this exhibit. None The redacted provisions are identified by asterisks and enclosed by brackets. The confidential portions have been filed separately with the Securities and Exchange Commission
(iii) cooperating with the marketing efforts of the Purchaser and its Debt Financing Commitments has been amended or modified prior Sources for the Financing; and
(iv) providing the Debt Financing Sources with the same access rights granted to the date Purchaser and its Representatives as set forth in Section 7.6 in connection with arranging the Financing.
(b) Notwithstanding anything to the contrary in this Agreement, (i) the conditions in Section 8.2(b) and Section 8.2(c) as they apply to the Company’s obligations under Section 7.12(a) will be deemed satisfied in all cases (whether or not the Company has breached or failed to perform under this Section 7.12), (ii) in the event that the Closing occurs and the Company has not performed (after prior written notice from the Purchaser and a 14 day opportunity to cure) its obligations under Section 7.12(a) in all material respects then an amount equal to the lesser of (A) £1,000,000 and (B) the damages suffered by the Purchaser resulting from such failure to perform Section 7.12(a) in all material respects shall be treated as Leakage and deducted from the Purchase Price on the Closing Date in accordance with Section 2.2(e) and the Purchaser shall not be entitled to any other remedy or recourse in respect thereof, (iii) except as set forth in the foregoing clause (ii), the Purchaser’s sole recourse and remedy for any breach or failure to perform this Section 7.12 shall be limited to monetary damages of not more than £1,000,000 and must arise solely to the extent that the Company has willfully and materially breached its obligations under this Section 7.12. This Section 7.12(b) shall survive any termination of this Agreement.
(c) Notwithstanding the foregoing or anything else in this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability contrary, in no event shall “commercially reasonable efforts” of the FinancingCompany, andits Subsidiaries, as its Affiliates or their respective Representatives be deemed to require such Persons to and such Persons shall not be required to (i) take any action to the extent it would unreasonably interfere with the business or operations of the date Company or any of its Subsidiaries or Affiliates or the waiver of any attorney-client work product or other privilege or protection or other legal immunity or protection from disclosure of the Purchaser, the Company or their Subsidiaries, (ii) pass resolutions or consents to approve or authorize the Financing or the execution and delivery of the definitive documentation related thereto or require the board of directors (or any similar governing body) to take any action or cause any of its Representatives to waive or amend any terms of this Agreement, no agree to pay any commitment, financing or other fees or reimburse any expenses or to approve the execution or delivery of any document or certificate in connection with the Financing, (iii) execute or enter into any certificate (including any solvency certificate), instrument, agreement or other document in connection with the Financing, (iv) deliver any financial statements not already prepared and otherwise not specifically required hereunder or under the Financing or not otherwise readily available to the Company with respect to such amendment period, (v) take any action that will conflict with or modification is contemplated violate in any material respect their constitutional documents or any applicable Laws or **** Confidential Treatment has been requested for certain redacted provisions of this exhibit. The redacted provisions are identified by asterisks and enclosed by brackets. The confidential portions have been filed separately with the Securities and Exchange Commission result in the contravention of, or would reasonably be expected to result in a violation or breach of, or default under, any Law, this Agreement or material agreement (other thanin each case prior to the Closing), for (vi) take any action that could reasonably be expected to result in incurring (or cause its directors, officers or employees to incur) any liability with respect to any matters related to the Financing, or (vii) take any action that could reasonably be expected to cause any condition to Closing set forth in this Agreement to fail to be satisfied or otherwise cause any breach of this Agreement that would provide the Purchaser the right to terminate this Agreement.
(d) For the avoidance of doubt, amendments to the draft credit agreement contemplated therebyCompany and its Subsidiaries and Affiliates will not incur any liability under this Agreement, or otherwise, in connection with, the information provided by the Company and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees its Subsidiaries in connection with the Financing Commitments that are payable on or prior to the date hereof. As financing of the date hereofPurchaser. The Purchaser shall indemnify and hold harmless the Company, its Subsidiaries or any of their respective Representatives from and against any and all losses, liabilities, costs or expenses suffered or incurred by them in connection with the arrangement of Financing, any cooperation efforts set forth herein and any information utilized in connection therewith except for losses, liabilities, costs or expenses resulting or arising from the gross negligence or willful misconduct of the Company, its Subsidiaries or any of their respective Representatives. Upon request, the Financing Commitments are Purchaser shall promptly reimburse the Company for all reasonable out-of-pocket costs or expenses incurred by the Company and its Subsidiaries in full force connection with cooperation provided for in this Section 7.12 including all fees and effect with respect to, and are the legal, valid, binding and enforceable obligations out-of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each -pocket expenses of the Company’s independent registered accounting firm or its other parties thereto (except, representatives incurred in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting connection with the enforcement of creditors’ rights generally, Company’s and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly its Subsidiaries cooperation and assistance obligations set forth in the Financing Commitment Documents delivered to Seller prior this Section 7.12.
(e) Notwithstanding anything in this Agreement to the date hereof. As contrary (x) the Parties acknowledge and agree that the provisions contained in this Section 7.12 represent the sole obligations of the date hereof, no event has occurred which, Company and its Subsidiaries and Representatives with or without notice, lapse respect to cooperation and/or assistance in connection with the arrangement of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions Purchaser’s financing and (y) the Purchaser acknowledges and agrees that its obligations to consummate the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it Transactions is not a condition to contingent upon the Closing Purchaser obtaining any financing (including the Financing) or any of the Company’s and its other obligations Subsidiaries’ or Representatives’ cooperation under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated herebySection 7.12.
Appears in 1 contract
Financing. (a) As Subject to the terms and conditions of this Agreement and the date hereofCompany’s compliance with its obligations contained in this Agreement, Purchaser has delivered Parent will use its reasonable best efforts to Seller true and correct copies of (i) maintain in effect the executed commitment letterCommitment Letters and any Fee Letter and not to permit any amendment or modification to be made to, dated as or any waiver of any material provisions under, the Commitment Letters or any Fee Letter, if such amendment, modification or waiver (A) reduces the aggregate amount of the date hereofFinancing, among Purchaser(B) imposes additional conditions precedent to the initial availability of the Debt Financing or amends or modifies any of the existing conditions to the provision of the Debt Financing in a manner that would reasonably be expected to delay, SigmaTEK Systemsprevent or render materially less likely to occur the Debt Financing, LLC or any portion thereof, on the Closing Date, or (“SigmaTEK”C) adversely impacts the ability of Parent, Merger Sub or the Company, as applicable, to enforce its rights against other parties to the Commitment Letters or the definitive agreements with respect thereto; (ii) negotiate definitive agreements with respect to the Debt Financing on the terms and conditions contemplated by the Debt Commitment Letter, or, to the extent the Debt Financing contemplated by the Debt Commitment Letter is not available to Parent, on other terms not materially less favorable, in the aggregate, to Parent; (iii) satisfy on a timely basis all conditions set forth in such Debt Commitment Letter applicable to Parent and Merger Sub that are within their control; (iv) subject to the satisfaction of the condition contained in Section 6.02(d) and subject to Section 5.09(e), fully enforce its rights under the Financing Sources thereto Commitment Letters; and (including v) comply in all exhibits, schedules, material respects with its covenants and annexes thereto, other obligations under the Commitment Letters.
(b) Subject to the terms and conditions of this Agreement and the executed fee letter associated therewith Company’s compliance with its obligations contained in this Agreement and referenced therein subject to the satisfaction of the condition contained in Section 6.02(d), if any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter, Parent will use its reasonable best efforts to arrange to obtain alternative debt financing from alternative sources (collectivelysuch sources, together with the lenders set forth in the Debt Commitment Letter, the “Debt Financing Commitment DocumentsSources”) (providedin an amount, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce when taken together with the amount of the Financing that is then available, sufficient to be funded consummate the Transaction on terms not materially less favorable, in the Closing Date aggregate, to Parent as promptly as practicable following the occurrence of such event (such alternative debt financing, the “Alternative Debt Financing”). Parent will give the Company prompt notice of any material breach by any party to the Financing Letters, of which Parent becomes aware, or adversely affect the conditionality or availability any termination of the Financing contemplated thereby on Debt Commitment Letter.
(c) Prior to the Closing DateEffective Time, the Company shall (and the Company shall cause each of its Subsidiaries to) provide, and shall use its commercially reasonable efforts to cause its Agents (and its Subsidiaries’ Agents), including legal and accounting Agents, to provide, in each case, at Parent’s sole expense, all cooperation reasonably requested by Parent or Merger Sub and that is necessary in connection with arranging and obtaining the Financing or any permitted replacement, amended, modified or Alternative Debt Financing (collectively with the Financing, the “Available Financing”), including without limitation (i) assisting Parent with the preparation of information memoranda and packages, lender presentations and similar documents and materials, in connection with the Available Financing, (ii) participating in a reasonable number of meetings, presentations and due diligence sessions (including bring down diligence sessions) in connection with the Available Financing, including direct contact between senior management and Agents of the Company and its Subsidiaries, Parent and the Debt Financing Sources in the Available Financing, (iii) (A) within twenty-five (25) days after the end of each fiscal month that ends after the date hereof, deliver to Parent consolidated unaudited monthly financial statements (balance sheet, income statement and statement of cash flows), and (B) as soon as reasonably practical after Parent’s request therefor but in no event later than thirty (30) days from the date of such request, (x) provide to Parent true and complete copies of consolidated financial statements of the Company and its Subsidiaries, as reasonably requested by Parent (collectively, the financial statements referred to in clause (A) and (B) above, the “Required Financial Information”), and (y) use commercially reasonable efforts to cause the Company’s independent auditors to provide consent to the use of any audited financial statements contained in the Required Financial Information in the offering documents (iv) assisting in the preparation of, and executing and delivering, definitive financing documents, including collateral documents, hedging agreements and other certificates and documents as may be amended requested by Parent or modified Merger Sub (including a certificate of the chief financial officer of the Company and its Subsidiaries with respect to solvency matters), (v) facilitating the pledging of collateral for the Available Financing, including taking commercially reasonable actions necessary to permit the Debt Financing Sources in accordance the Available Financing to evaluate the Company’s and its Subsidiaries’ real property and current assets, cash management and accounting systems, policies and procedures for the purpose of establishing collateral arrangements and establishing, as of the Effective Time, bank and other accounts and blocked account agreements and lockbox arrangements in connection with the terms hereofAvailable Financing, collectively(vi) using commercially reasonable efforts to obtain such consents, waivers, estoppels, approvals, authorizations and instruments which may be reasonably requested by Parent or Merger Sub in connection with the “Available Financing Commitments”)and collateral arrangements, pursuant including customary payoff letters, lien releases, instruments of termination or discharge, legal opinions, appraisals, engineering reports, surveys, title insurance, landlord consents, waivers and access agreements and (vii) facilitating the consummation of the Available Financing, including cooperating with Parent and Merger Sub to which satisfy the conditions precedent to the Available Financing Sources party thereto have committedto the extent within the control of the Company and Company Subsidiaries, and taking all corporate actions, subject to the terms and conditions set forth therein, to lend the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase occurrence of the Purchased Equity and Effective Time, reasonably requested by Parent or Merger Sub to permit the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portion, the “Financing”). None consummation of the Available Financing Commitments has been amended or modified prior and to permit the proceeds thereof to be made available to the date of this Agreement in any manner that would adversely impact Surviving Corporation immediately upon the availability of, or add additional conditions precedent to the availability of the Financing, and, as of the date of this Agreement, no such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect.
(b) Except for fee letters (complete copies of which have been provided to SellerEffective Time; provided, however, that notwithstanding the foregoing, no obligations of the Company, its Subsidiaries or their Agents under any such agreement, certificate, document or instrument shall be effective until the Effective Time; provided, further, that neither the Company nor any of its Subsidiaries shall be required to pay any commitment fee letter may redacted as or other fee or payment to economic obtain consent or to incur any liability with respect to the Debt Financing prior to the Effective Time. Notwithstanding anything to the contrary in this Agreement, the Required Financial Information required to be delivered pursuant to this Section 5.09(c) shall be prepared in accordance with GAAP (except, in the case of unaudited financial statements, for the absence of footnotes and “flex” termsnormal, none recurring year-end adjustments).
(d) Parent and Merger Sub will take (or cause to be taken) all actions, and do (or cause to be done) all things necessary or advisable to obtain the Equity Financing contemplated by the Equity Commitment Letter and to fully enforce the Equity Commitment Letter.
(e) Notwithstanding anything to the contrary contained in this Agreement, nothing contained in this Section 5.09 shall require, and in no event shall the efforts of which would reduce the amount Parent or Merger Sub be deemed or construed to require, either Parent or Merger Sub to (i) bring any enforcement action against any source of the Financing to be funded on enforce its respective rights under the Closing Date Financing Letters or adversely affect the conditionality or availability any Fee Letter, except that Parent shall seek enforcement of the Financing contemplated thereby on Equity Commitment Letter solely if the Closing Date), as Company seeks and is granted a decree of specific performance to consummate the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the Merger after all conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly granting therefor set forth in Section 8.12 of this Agreement have been satisfied, including, without limitation, that the Debt Financing Commitments delivered Sources have indicated in writing that they are prepared to Seller prior to fund the date hereof. Purchaser Debt Financing if and SigmaTEK have fully paid any and all commitment fees or other fees in connection with when the Financing Commitments that are payable on or prior to Equity Provider funds the date hereof. As of the date hereof, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Equity Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to seek the availability Equity Financing from any source other than those counterparty to, or in any amount in excess of that contemplated by, the Financing on the part of SigmaTEK Equity Commitment Letter or Purchaser or, (iii) to the knowledge pay any fees in excess of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing those contemplated by the Financing Commitments applicable Letters (whether to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing secure waiver of any conditions contained therein or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated herebyotherwise).
Appears in 1 contract
Financing. (a) As of PTAC shall use its reasonable best efforts to obtain the date hereofPIPE Financing (and the Company shall reasonably cooperate with PTAC in connection thereto) on a timely basis on the terms and conditions described in the Subscription Agreements, Purchaser has delivered including using its reasonable best efforts to Seller true and correct copies of (i) comply with its respective obligations under the executed commitment letterSubscription Agreements, dated as of (ii) maintain in effect the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) and the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified Subscription Agreements in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject to the terms and conditions set forth thereinthereof, (iii) satisfy on a timely basis all conditions and covenants applicable to lend the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portion, the “Financing”). None of the Financing Commitments has been amended or modified prior to the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, as of the date of this Agreement, no such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly PTAC set forth in the applicable Subscription Agreements within its control, and (iv) consummate the PIPE Financing Commitments delivered when required pursuant to Seller prior this Agreement. PTAC shall give the Company prompt written notice upon having actual knowledge of any breach or default by any party to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereof, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge Subscription Agreements or any termination (or purported termination) of Purchaser, each any of the other parties thereto (exceptSubscription Agreements. Other than as set forth in this Section 5.7(a) or Section 5.7(b), in each casePTAC shall not, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting without the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As prior written consent of the date hereofCompany, there are no conditions precedent amend, modify, supplement or other contingencies related to the funding waive any of the full amount of the Financing, other than as expressly conditions or contingencies to funding set forth in the Financing Commitment Documents delivered to Seller prior Subscription Agreements or any other provision of, or remedies under, the Subscription Agreements (except as otherwise permitted hereunder), in each case to the date hereof. As of the date hereofextent such amendment, no event has occurred whichmodification, with supplement or without notice, lapse of time or both, waiver would reasonably be expected to (i) constitute a default or breach on have the part effect of SigmaTEK or Purchaser under adversely affecting in any respect the Financing Commitment Documents that would impair ability of PTAC to timely consummate the availability transactions contemplated by this Agreement, including by reducing the aggregate amount of the PIPE Financing on contemplated in the Closing Date, (ii) constitute a failure Subscription Agreements such that the Aggregate PTAC Transaction Proceeds would not be sufficient to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a6.3(d).
(b) If all or any portion of the PIPE Financing becomes unavailable, (i) PTAC shall promptly use its reasonable best efforts to promptly obtain the PIPE Financing or such portion of the PIPE Financing from alternative sources in an amount, when added to any portion of the PIPE Financing that is satisfiedavailable, equal to the PIPE Financing Amount (any alternative source(s) of financing, “Alternative PIPE Financing”) and (ii) in the event that PTAC is able to obtain any Alternative PIPE Financing, PTAC shall use its reasonable best efforts to enter into a new subscription agreement (each, an “Alternative Subscription Agreement”) that provides for the subscription and purchase of PTAC Class A Shares containing terms and conditions not materially less favorable from the standpoint of PTAC and the Affiliates of PTAC party thereto than those in the Subscription Agreements entered into as of the date hereof (as determined in the reasonable good faith judgment of PTAC). In such event, the performance by Seller of its obligations under term “PIPE Financing” as used in this Agreement shall be deemed to include any Alternative PIPE Financing, the term “Subscription Agreements” as used in this Agreement shall be deemed to include any Alternative Subscription Agreement and the satisfaction term “PIPE Investor” as used in this Agreement shall be deemed to include any Person that is subscribing for PTAC Class A Shares under any Alternative Subscription Agreement. For the avoidance of doubt, if all or any portion of the other conditions set forth in Sections 8.1PIPE Financing or Alternative PIPE Financing becomes unavailable, 8.2 and 8.3PTAC may utilize deposits, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains the Financing proceeds or any other amounts from the Trust Account and, to the extent reasonably acceptable to the Company, any additional third party financing for or related to any of satisfy its financing obligations hereunder (including to satisfy the transactions contemplated herebyMinimum Cash Condition).
Appears in 1 contract
Financing. Parent has delivered to MUSA copies of (a) As of the date hereof, Purchaser has delivered to Seller true and correct copies of (i) the executed a commitment letter, dated as of the date hereofMay 18, among Purchaser, SigmaTEK Systems, LLC 2005 (“SigmaTEK”) and the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Equity Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing CommitmentsLetter”), pursuant to which Apollo Management V, L.P. has committed, subject to the terms and conditions set forth therein, to contribute (or cause to be contributed) capital to Parent (the “Equity Financing”), and (b) a commitment letter dated May 13, 2005 (the “Debt Financing Sources party thereto Agreement” and, together with the Equity Financing Letter, the “Financing Agreements”), pursuant to which Credit Suisse First Boston and CIBC World Markets Corp. have committed, subject to the terms and conditions set forth therein, to lend (i) make senior secured increasing rate bridge loans to Merger Sub, and (ii) enter into a credit agreement providing for senior secured asset-based revolving loans to Merger Sub (the “Debt Financing”). As used in this Agreement, the financing to be provided under clause (a) above shall be referred to as the “Equity Financing”, the financing to be provided under clause (b) above shall be referred to as the “Debt Financing”, and the Equity Financing and Debt Financing shall collectively be referred to as the “Financing.” The aggregate proceeds of the Financing are in an amount sufficient to consummate the transactions contemplated hereby, including to pay the aggregate Merger Consideration, to pay the amounts set forth thereinrequired under Section 2.3(a) and 2.3(b), a portion to pay the amounts required to holders of which shall be used for MUSA Warrants if such holders exercise such MUSA Warrants on or after the purposes of funding Closing Date (taking into account the purchase payment of the Purchased Equity exercise price by such holders to MUSA or the Surviving Corporation), to repay certain existing indebtedness of MUSA and the other transactions contemplated by this Agreement its subsidiaries in accordance with Section 5.1(f) and paying the to pay related fees and expenses specified herein (such portionamounts, the “FinancingRequired Amounts”). None of the Financing Commitments has been amended or modified prior to the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, as of the date of this Agreement, no such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereof, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding none of the full amount Financing Agreements has been withdrawn and Parent does not know of any facts or circumstances that may reasonably be expected to result in any of the Financing, other than as expressly conditions set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing Agreements not being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated hereby.
Appears in 1 contract
Sources: Merger Agreement (Metals USA Plates & Shapes Southcentral, Inc.)
Financing. (ai) As of the date hereof, Purchaser has delivered to Seller a complete true and correct copies copy of (i) an executed debt commitment letter from the executed commitment letter, Financing Sources party thereto dated as of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) and the Financing Sources thereto hereof (including all exhibits, schedules, schedules and annexes thereto, the “Commitment Letter” and the executed fee letter associated therewith and referenced therein (collectivelycommitments under the Commitment Letter, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing CommitmentsCommitment”), pursuant to which the Financing Sources party thereto have committed, subject committed to purchase notes from Purchaser and/or provide loans to the terms and conditions set forth therein, to lend Purchaser in each case in the amounts set forth therein, a portion of which shall be used subject to the terms, conditions, and limitations thereof and for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein set forth therein (such portion, the “Financing”). None As of the Financing Commitments Execution Date, the Commitment Letter is in full force and effect and, except as permitted by Section 7.15, has not been withdrawn, rescinded or terminated or otherwise amended or modified prior to the date of this Agreement in any manner that would adversely impact the availability ofrespect, or add additional conditions precedent to the availability of the Financing, and, as of the date of this Agreement, and no such amendment or modification is contemplated (other than, for the avoidance of doubt, than customary amendments to the draft credit agreement contemplated thereby, and amendments add or joinders to the Financing Commitments solely to add replace lenders, lead arrangers, bookrunners, syndication agents agents, or similar entities as parties thereto who had have not executed the Financing Commitments Commitment Letter as of the date hereof), and as of the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn . Purchaser has fully paid or rescinded in any respect.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing has caused to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments Commitment Letter that are payable on or prior to the date hereofExecution Date. As of the date hereof, the Financing Commitments are in full force and effect with respect to, and are the Commitment Letter is a legal, valid, and binding and enforceable obligations of, obligation of Purchaser and SigmaTEK and, to the knowledge Knowledge of Purchaser, each of the other parties thereto (exceptthereto, enforceable in each caseaccordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium bankruptcy or other similar Laws laws affecting the enforcement rights and remedies of creditors’ rights generally, and creditors generally as well as to general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law equity or equity)at law). As The Commitment Letter contains all of the date hereofconditions precedent to the obligations of the parties thereunder to make the Financing available to Purchaser on the terms therein, and there are no other conditions precedent or other contingencies related to the funding of the full amount of the Financing. There are no other agreements, side letters, or arrangements relating to the Financing Commitment that would reasonably be expected to adversely affect the conditionality of the Financing other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to Letter. Assuming the date hereof. As of the date hereofconditions precedent described in Section 8.2 will be satisfied at Closing, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK or Purchaser or, to the Knowledge of Purchaser, any other parties thereto, under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, Letter.
(ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming Purchaser does not have any reason to believe that it shall be unable to satisfy, on a timely basis, any term or condition to the availability or funding of the Financing to be satisfied by it contained in the Commitment Letter. Following the satisfaction or waiver of all conditions set forth in Section 8.2, the aggregate proceeds from the Financing, when funded in accordance with the Commitment Letter on the Closing Date, together with other financial resources of Purchaser, including cash on hand of, and credit facilities available to, Purchaser, shall, in the aggregate, be sufficient to pay the amounts required to be paid by Purchaser under this Agreement on the Closing Date and any fees and expenses payable by Purchaser on the Closing Date in connection with the transactions contemplated by this Agreement and the Financing (the “Required Amount”). Purchaser is not aware of any fact, occurrence or condition that makes any of the assumptions or statements set forth in the Commitment Letter inaccurate in any material respect or that would cause any of the commitments provided in the Commitment Letter to be terminated or ineffective. Subject to the accuracy of the representations and warranties of Seller set forth in Article IV such that 4, the condition set forth satisfaction of the conditions contained in Section 8.2(a) is satisfied8.2, and the performance by Seller of its other obligations under this Agreement and the satisfaction Agreement, as of the other conditions set forth in Sections 8.1date hereof, 8.2 and 8.3, SigmaTEK and Purchaser have has no reason to believe that any of the conditions to the Financing contemplated by shall not be satisfied or that the Financing Commitments applicable to it will not be satisfied available in full to Purchaser on the Closing Date. .
(iii) In no event shall the receipt or availability of any Financing by Purchaser affirms that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related Affiliates be a condition to any of Purchaser’s obligations hereunder and no delay or failure of any Person to provide, fund or obtain the transactions contemplated herebyFinancing shall reduce, waive or release Purchaser from any of its obligations hereunder.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Riley Exploration Permian, Inc.)
Financing. (a) As Parent and Merger Sub shall use their reasonable best efforts (taking into account the expected timing of the date hereof, Purchaser has delivered Marketing Period) to Seller true arrange and correct copies of consummate the Financing on the terms and conditions described in the Commitment Letters at or prior to the Closing including by (i) maintaining in effect the executed commitment letterCommitment Letters and negotiating and entering into the definitive agreements with respect to the Debt Financing (the “Definitive Financing Agreements”) on the terms and conditions contained in the Debt Commitment Letter; (ii) satisfying (or, dated if deemed advisable by Parent, seeking the waiver of) on a timely basis all terms, covenants and conditions forth in the Commitment Letters and the Definitive Financing Agreements applicable to Parent and Merger Sub that are within their control; and (iii) upon satisfaction of all of the conditions precedent under Section 7.1 and Section 7.2 (except those that, by their nature, are to be satisfied at the Closing, provided that such conditions would be so satisfied as of such date), consummating or causing the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) and the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount consummation of the Financing including, if necessary, by enforcing their rights under the Commitment Letters and the Definitive Financing Agreements. Notwithstanding anything to the contrary in this Agreement, nothing contained in this Section 6.19 shall require, and in no event shall the reasonable best efforts of Parent or Merger Sub be funded on deemed or construed to require, either Parent or Merger Sub to (i) seek the Equity Financing from any source other than the Guarantor counterparty to, or in any amount in excess of that contemplated by, the Equity Commitment Letter, or (ii) pay any material fees in excess of those contemplated by the Equity Commitment Letter or the Debt Commitment Letter.
(b) Upon request of the Company, Parent shall apprise the Company of material developments relating to the Financing and shall give the Company prompt notice of 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) any Commitment Letter or adversely affect Definitive Financing Agreement, as applicable, shall expire or be terminated for any reason, (ii) any financing source that is a party to any Commitment Letter and is also party to any Definitive Financing Agreement notifies Parent that such source no longer intends to provide financing to Parent on the conditionality terms set forth therein, or availability (iii) for any reason Parent no longer believes in good faith that it will be able to obtain all of the Financing contemplated thereby by the Commitment Letters on the Closing Date)terms described therein. Parent shall not amend, as may be amended alter or modified in accordance with the terms hereofreplace, collectivelyor agree to amend, the “Financing Commitments”)alter or replace, pursuant to which the Financing Sources party thereto have committed, subject to the terms and conditions set forth therein, to lend the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portion, the “Financing”). None of the Financing Commitments has been amended or modified prior to the date of this Agreement any Commitment Letter in any manner that would adversely impact the availability of, (i) impose new or add additional conditions precedent or otherwise expand, amend or modify any of the conditions to the availability receipt of the Financing, andor (ii) reduce the amount of cash proceeds from the Financing available to fund the Required Amount, as in each case, in a manner that would reasonably be expected to prevent or materially impair or delay the ability of Parent to consummate the Transactions without the prior written consent of the date of this Agreement, no such amendment or modification is contemplated Company (other than, for it being understood and agreed that Parent and Merge Sub may amend the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments Debt Commitment Letter solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and Debt Commitment Letter as of the date of this Agreement Agreement.
(c) If any portion of the commitments Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter, or if the Debt Commitment Letter shall be terminated or modified in a manner materially adverse to Parent for any reason, Parent and Merger Sub shall use their reasonable best efforts to arrange to obtain alternative financing from alternative sources on terms, taken as a whole, not materially less favorable to Parent and Merger Sub as those contained in the Financing Commitments have not been withdrawn or rescinded in Debt Commitment Letter (after taking into account any respect.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth provisions included in the Financing Commitments delivered related fee letter) and in an amount sufficient to Seller prior fund the Required Amount (the “Alternate Financing”) and to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereofobtain, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to if obtained, will provide the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated hereby.Company
Appears in 1 contract
Financing. (a) As of the date hereof, Purchaser has delivered to Seller true and correct copies of (i) the executed commitment letter, dated as of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) and the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject Subject to the terms and conditions of this Agreement (including for the avoidance of doubt the other clauses of this Section 6.10), Parent shall, and shall cause its applicable Affiliates to, use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable to arrange, obtain and consummate the Debt Financing on the terms and conditions described in the Debt Commitment Letter, including the “market flex” provisions (if any) set forth in the Fee Letter, including using its reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter on the terms and conditions contained therein, including, to lend the amounts set forth therein, a portion of which shall be used for extent the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portionsame are exercised, the “Financing”). None market flex” provisions (if any) set forth in the Fee Letter, until the earlier of consummation of the Financing Commitments has been amended or modified prior to the date Merger and termination of this Agreement in accordance with Section 9.02; (ii) negotiate, finalize and enter into definitive agreements with respect to the Debt Financing on terms and conditions contemplated by the Debt Commitment Letter, including, to the extent the same are exercised, the “market flex” provisions (if any) set forth in the Fee Letter, or on other terms in the aggregate not materially less favorable, taken as a whole, provided that such other terms could not reasonably be expected to adversely impact or delay the ability of Parent, Purchaser or Merger Sub to consummate the Merger or the Debt Financing at Closing; (iii) comply with their respective obligations under the Debt Commitment Letter and satisfy on a timely basis (or obtain a waiver of) all conditions precedent in the Debt Commitment Letter; and (iv) consummate the Debt Financing at or prior to the Closing.
(b) Parent shall not, and shall cause its applicable Affiliates not to, permit any amendment or modification to be made to, or any termination, rescission or withdrawal of, or any waiver of any provision or remedy under, or assignment of, the Debt Commitment Letter, the definitive agreements with respect thereto (such definitive agreements related to the Debt Financing, collectively with the Debt Commitment Letter, the “Debt Documents”) or the Fee Letter prior to the Merger, including any such amendment, modification or waiver that, individually or in the aggregate with any other amendments, modifications or waivers, could reasonably be expected to (i) reduce the aggregate amount of the Debt Financing under any Debt Document, including by changing the amount of fees to be paid or original issue discount thereof, below the amount necessary to consummate the transactions contemplated hereunder to occur at Closing (including payment of the Debt Payoff Amount) or (ii) impose any new or additional conditions or contingencies, or otherwise amend, modify or expand any condition, to the receipt of any portion of the Debt Financing in a manner that would could reasonably be expected to (A) delay or prevent the Closing, (B) make the funding of any portion of the Debt Financing necessary to consummate the transactions contemplated hereunder to occur at Closing (including payment of the Debt Payoff Amount) (or satisfaction of any condition to obtaining any portion of the Debt Financing necessary to consummate the Merger) less likely to occur or (C) adversely impact the availability ofability of Parent to enforce its rights against any other party to any Debt Document, the ability of Parent, Purchaser or add additional conditions precedent Merger Sub to consummate the transactions contemplated hereby to occur at Closing or the likelihood of the consummation of the transactions contemplated hereby to occur at Closing. In addition to the availability foregoing, Parent shall not release or consent to the termination of the FinancingDebt Commitment Letter; provided, andthat, as of notwithstanding the date of this Agreementforegoing, no such amendment Parent may modify, supplement or modification is contemplated (other than, for amend the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely Debt Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents, other agents or similar entities as parties thereto who had that have not executed the Financing Commitments as of the date hereof), and as of the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), Debt Commitment Letter as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditionsincrease the amount of funds available thereunder and, affect the availability of or modifyin connection therewith, amend or expand the conditions economic and other arrangements with respect to the funding appointment of such existing and additional lenders, lead arrangers, bookrunners, syndication agents, other agents or similar entities, or to reallocate the commitments provided thereunder.
(c) If (x) the commitments with respect to all or any portion of the Debt Financing expire or terminate or (y) any portion of the transactions Debt Financing becomes unavailable on the terms and conditions contemplated hereby other than as expressly in the Debt Commitment Letter, including the “market flex” provisions (if any) set forth in the Financing Commitments delivered Fee Letter, and in either such case such portion is required to Seller prior consummate the transactions contemplated by this Agreement to occur at Closing (including payment of the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable Debt Payoff Amount), on or prior to the date hereof. As Closing Date, (i) Parent or Purchaser shall promptly following the occurrence of such event: notify the date hereofCompany in writing thereof; and (ii) Parent shall use reasonable best efforts to (A) obtain alternative financing from alternative debt financing sources on terms and conditions (including structure, the Financing Commitments are in full force covenants and effect with respect topricing) not materially less favorable to Parent or its Affiliates, and are the legaltaken as a whole, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly contemplated by the Debt Commitment Letter (taking into account the “market flex” provisions (if any) set forth in the Fee Letter) in an amount at least equal to the Debt Financing Commitment Documents delivered or such unavailable portion thereof, as the case may be; and (B) obtain a new financing commitment letter that provides for such alternative financing and, promptly after execution thereof, deliver to Seller the Company true, accurate and complete copies of the new commitment letter and the related fee letters (provided that the fee amounts, pricing caps and other economic terms, and the rates and amounts included in the “market flex” provisions (if any) (but not covenants), may be redacted, none of which redacted provisions could adversely affect the conditionality, availability, enforceability or aggregate principal amount of the Debt Financing or could reasonably be expected to delay the Closing).
(d) Parent or Purchaser shall, promptly after obtaining knowledge thereof, give the Company written notice of any of the following occurring prior to the date hereof. As consummation of the date hereof, no Merger: (i) the breach or default (or any event has occurred whichor circumstance that, with or without notice, lapse of time or both, would could reasonably be expected to (iresult in a breach or default) constitute a default or breach on related to the part Debt Financing by any party to the Debt Commitment Letter of SigmaTEK which Parent or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, becomes aware; (ii) constitute a failure to satisfy a condition precedent to the availability if and when Parent or Purchaser becomes aware that any portion of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Debt Financing contemplated by the Financing Commitments applicable Debt Commitment Letter necessary to it will consummate the transactions contemplated hereunder to occur at Closing (including payment of the Debt Payoff Amount) may not be satisfied on available at the Closing Date. Closing; (iii) receipt of any written notice or other written communication from any Person with respect to any actual breach or default by any party to the Debt Commitment Letter or other Debt Document; (iv) of any expiration or termination of the Debt Commitment Letter (other than under the circumstances contemplated in clause (e) below); or (v) any change, circumstance or event which causes Parent or Purchaser affirms to believe in good faith that it shall not be able to timely obtain all or any portion of the Debt Financing in the amounts or from the sources contemplated by the Debt Commitment Letter necessary to consummate the transactions contemplated hereunder to occur at Closing (including payment of the Debt Payoff Amount). Parent and Purchaser shall keep the Company informed on a reasonably current basis upon request by the Company of the status of its efforts to arrange the Debt Financing contemplated by the Debt Commitment Letter.
(e) Notwithstanding anything to the contrary in this Section 6.10, Purchaser or Parent may, without notice to or consent of the Company, reduce the amount of the Debt Financing under the Debt Commitment Letter, or terminate the Debt Commitment Letter, to the extent that the remaining amount of the Debt Financing under the Debt Commitment Letter (if any) after such reduction or termination, taken together with the net cash proceeds of one or more offerings, placements, sales and/or other issuances of debt and/or equity securities of or term loans to Purchaser or Parent subsequent to the date hereof (collectively, “Permanent Financing”), together with cash on hand of Parent and its Subsidiaries, is sufficient to consummate the transactions contemplated hereunder to occur at Closing (including payment of the Debt Payoff Amount).
(f) For the purposes of this Agreement, the definitions of “Debt Commitment Letter” and “Debt Financing” include the Debt Commitment Letter and any document related thereto as the same may be amended, waived, modified or replaced pursuant to this Section 6.10.
(g) Each of Parent, Purchaser and Merger Sub acknowledges and agrees that the obtaining of the Debt Financing, or any alternative financing, is not a condition to Closing and reaffirms its obligation to consummate the Closing or any of its other obligations under transactions contemplated by this Agreement that Purchaser obtains irrespective and independently of the availability of the Debt Financing or any other financing for alternative financing, subject to fulfillment or related to any waiver of the transactions contemplated herebyconditions set forth in Article VII.
Appears in 1 contract
Financing. (a) As of The Parent and the date hereof, Purchaser has Sub have delivered to Seller the Company a true and correct copies complete copy of (iA) the executed commitment letter, dated as of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) and the Equity Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), Letters pursuant to which the Financing Sources investors party thereto have committed, subject to the terms and conditions thereof, to invest the cash amount set forth thereintherein (the “Equity Financing”) and (B) the Debt Commitment Letter (the Debt Commitment Letter, together with the Equity Financing Letters, the “Financing Letters”), pursuant to which the lenders party thereto have committed, subject to the terms thereof, to lend the amounts set forth thereintherein (the “Debt Financing” and, a portion of which shall be used for together with the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portionFinancing, the “Financing”). None As of the Financing Commitments has been amended or modified prior to the date of this Agreement Agreement, the Financing Letters are in full force and effect and constitute the legal, valid and binding obligation of each of the Parent and, to the knowledge of the Parent, the other parties thereto. Other than as expressly set forth in the Financing Letters, there are no conditions precedent related to the funding of the full net proceeds of the Financing (including pursuant to any manner “flex” provisions in connection therewith) under any agreement relating to the Financing to which the Parent or any of its Affiliates is a party that would adversely impact the availability ofwould, or add additional conditions precedent to would reasonably be expected to, (A) impair the availability validity of the FinancingFinancing Letters, and(B) reduce the aggregate amount of the Financing or (C) delay or prevent the Closing.
(b) Upon receipt of the proceeds contemplated by the Financing Letters, as the Parent and the Sub will have access at the Effective Time to sufficient cash funds and borrowing capacity to pay all amounts contemplated by this Agreement to be paid by them and to perform their respective obligations hereunder.
(c) As of the date of this Agreement, no such amendment event has occurred that would constitute a breach or modification is contemplated default (other thanor that with notice or lapse of time or both would constitute a default) of the Financing Letters, for in each case, on the avoidance part of doubtthe Parent or the Sub or, amendments to the draft credit agreement contemplated therebyknowledge or the Parent, and amendments the other parties under the Financing Letters. The Parent has fully paid or joinders caused to be fully paid all commitment fees or other fees required pursuant to the Financing Commitments solely Letters to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and be paid as of the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respectAgreement.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereof, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated hereby.
Appears in 1 contract
Sources: Merger Agreement (Fidelity National Financial, Inc.)
Financing. (a) As of The Parents shall use their reasonable best efforts to (i) arrange and obtain the Financing on the terms and conditions described in the Financing Commitments, which agreements shall be in effect as promptly as practicable after the date hereof, Purchaser has delivered to Seller true but in no event later than the Closing, (ii) negotiate and correct copies of (i) the executed commitment letter, dated as of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) and the Financing Sources finalize definitive agreements with respect thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject to the terms and conditions set forth thereincontained in the Financing Commitments, (iii) satisfy on a timely basis all conditions applicable to lend the amounts set forth thereinParents or Mergerco in such definitive agreements that are within their control, a (iv) consummate the Financing no later than the Closing, and (v) enforce their rights under the Financing Commitments. In the event that any portion of which the Financing becomes unavailable in the manner or from the sources contemplated in the Financing Commitments, (A) the Parents shall be used for promptly notify the purposes Company, and (B) the Parents shall use their reasonable best efforts to obtain alternative financing from alternative sources, on terms, taken as whole, that are no more adverse to the Company, as promptly as practicable following the occurrence of funding such event but in no event later than the purchase last day of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein Marketing Period, including entering into definitive agreements with respect thereto (such portion, definitive agreements entered into pursuant to this Section 6.13(a) being referred to as the “FinancingFinancing Agreements”). None of the Financing Commitments has been amended or modified prior to the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, as of the date of this Agreement, no such amendment or modification is contemplated (other than, for For the avoidance of doubt, amendments to in the draft credit agreement event that (x) all or any portion of the Debt Financing, structured as a high yield financing, has not been consummated; and (y) all conditions set forth in Article VII hereof have been satisfied or waived (other than conditions set forth in Section 7.02(c) and Section 7.03(d)) and (z) the bridge facilities contemplated thereby, and amendments or joinders to by the Financing Commitments solely are available on terms and conditions described in the Financing Commitments, then the Parents shall agree to use the bridge facility contemplated by the Debt Commitment Letters, if necessary, to replace such high yield financing no later than the last date of the Marketing Period. In furtherance of the provisions of this Section 6.13(a), one or more Debt Commitment Letters may be amended, restated, supplemented or otherwise modified or superseded to add one or more lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who which had not executed the Financing Commitments Debt Commitment Letters as of the date hereof, to increase the amount of indebtedness or otherwise replace one or more facilities with one or more new facilities or modify one or more facilities to replace or otherwise modify the Debt Commitment Letters, or otherwise in manner not less beneficial in the aggregate to Mergerco and the Parents (as determined in the reasonable judgment of the Parents) (the “New Debt Financing Commitments”), provided that the New Debt Financing Commitments shall not (i) adversely amend the conditions to the Debt Financing set forth in the Debt Commitment Letters, in any material respect, (ii) reasonably be expected to delay or prevent the Closing; or (iii) reduce the aggregate amount of available Debt Financing (unless, in the case of this clause (iii), replaced with an amount of new equity financing on terms no less favorable in any material respect to Mergerco than the terms set forth in the Equity Commitment Letters or one or more new debt facilities pursuant to the new debt facilities pursuant to the New Debt Financing Commitments.) Upon and from and after each such event, the term “Debt Financing” as used herein shall be deemed to mean the Debt Financing contemplated by the Debt Commitment Letters that are not so superseded at the time in question and the New Debt Financing Commitments to the extent then in effect. For purposes of this Agreement, “Marketing Period” shall mean the first period of twenty-five (25) consecutive business days throughout which (A) the Parents shall have the Required Financial Information that the Company is required to provide the Parents pursuant to Section 6.13(b), and as (B) the conditions set forth in Section 7.01 or Section 7.02 (other than Section 7.02(c)) shall be satisfied and nothing has occurred and no condition exists that would cause any of the date of this Agreement conditions set forth in Section 7.02 (other than Section 7.02(c)) to fail to be satisfied assuming the commitments contained in the Financing Commitments have not been withdrawn or rescinded in Closing were to be scheduled for any respect.
time during such twenty-five (b25) Except for fee letters (complete copies of which have been provided to Sellerconsecutive business day period; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce if the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable Marketing Period has not ended on or prior to the date hereof. As of the date hereofAugust 17, 2007, the Financing Commitments are in full force and effect with respect toMarketing Period shall commence no earlier than September 4, and are 2007 or if the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium Marketing Period has not ended on or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to December 14, 2007, the date hereofMarketing Period shall commence no earlier than January 7, 2008. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to The Parents shall (ix) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability furnish complete and correct and executed copies of the Financing on the Closing DateAgreements promptly upon their execution, (iiy) constitute a failure to satisfy a condition precedent to give the availability Company prompt notice of any material breach by any party of any of the Financing on the part of SigmaTEK Commitments, any New Debt Financing Commitment or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on Arrangements of which the Closing DateParents become aware or any termination thereof, so long as and (z) otherwise keep the conditions Company reasonably informed of the status of the Parents’ efforts to arrange the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing (or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated herebyreplacement thereof).
Appears in 1 contract
Sources: Merger Agreement (Clear Channel Communications Inc)
Financing. (a) As Prior to the Closing Date, the Seller Parties agree to provide, and shall cause the Partnership, the Partnership Subsidiaries and the Seller Representatives to provide, commercially reasonable cooperation in connection with the Financing (which includes, for purposes of this Section 5.8, all transactions contemplated by the Financing Letters) as may be reasonably requested by Buyer (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the date hereofSeller Parties, Purchaser has delivered the Partnership and the Partnership Subsidiaries or their affiliates or sponsors and does not require the Seller Parties, the Partnership or any of the Seller Representatives to Seller true execute and correct copies deliver any certificate or opinion to the extent any such certificate or opinion certifies or opines, as applicable, with respect to facts, circumstances or events that will exist after giving effect to the transactions contemplated hereby and the incurrence of any indebtedness of the Partnership pursuant to the Financing), including promptly following Buyer’s reasonable request: (i) furnishing Buyer and its Financing Sources with financial and other pertinent information regarding the Partnership to the extent required under or reasonably requested in connection with the Financing Letters or any documents executed commitment letterin relation thereto (including, dated as without limitation, (A) unaudited consolidated financial statements covering each of the three (3) years in the fiscal period ended at least sixty (60) days prior to the closing date hereofof any Financing, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”B) unaudited consolidated interim financial statements for any interim period ended at least forty (40) days prior to the closing of any Financing and (C) such other financial information relating to as may be reasonably requested by the Financing Sources thereto sources in connection with the Financing (including all exhibitsto the extent available)); (ii) participating in meetings, schedulespresentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies, and annexes theretocooperating with the marketing efforts of Buyer and their Financing Sources, in each case in connection with the arrangement of the Financing; (iii) assisting with the timely preparation of materials for rating agency and lender presentations, offering documents, bank information memoranda, private placement memoranda, prospectuses and similar documents required in connection with the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (Financing; provided, howeverthat any rating agency presentations, that such lender presentations, offering documents, bank information memoranda, private placement memoranda, prospectuses and similar documents required in connection with the Financing Commitment Documents may be redacted shall contain disclosure reflecting Buyer and/or its Subsidiaries as the obligor; (iv) using commercially reasonable efforts to economic obtain (at Buyer’s expense) legal opinions, surveys and “flex” terms, none title insurance at the expense of which would reduce the amount and as reasonably requested by Buyer on behalf of the Financing Sources; (v) taking corporate actions, subject to be funded on the Closing Date or adversely affect occurrence of the conditionality or availability Closing, necessary to permit the consummation of the Financing and to permit the proceeds thereof to be made available to Buyer as of Closing; provided, that no obligation of the Seller Parties or any of its Subsidiaries under any such agreements or amendments shall be effective until the Effective Time; (vii) delivering notices of prepayment within the time periods required by the relevant agreements governing indebtedness and arranging for customary payoff letters, lien terminations, instruments of discharge and original collateral to be delivered at Closing in respect of all indebtedness contemplated thereby by the Financing Letter to be paid off, discharged and terminated on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant to which ; and (viii) reasonably assisting the Financing Sources party thereto have committedwith their due diligence investigations, subject including, without limitation, by supplying due diligence materials and information reasonably requested by the Financing Sources with respect to the terms and conditions set forth thereingeneral affairs, to lend the amounts set forth thereinmanagement, a portion prospects, financial position, partners’ equity or results of which shall be used for the purposes of funding the purchase operations of the Purchased Equity Partnership and the Partnership Subsidiaries and the tax, accounting, legal, regulatory and other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portion, the “Financing”). None of the Financing Commitments has been amended or modified prior issues relevant to the date of this Agreement in any manner that would adversely impact Partnership and the availability of, or add additional conditions precedent to the availability of the Financing, and, as of the date of this Agreement, no such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, Partnership Subsidiaries and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect.
(b) Except for fee letters (complete copies of which have been provided to Sellertheir respective subsidiaries; provided, however, that the Seller Parties will incur no obligations or liabilities as a result of any such fee letter may redacted as of the foregoing and no obligation of the Partnership or any of its Subsidiaries under any agreement, certificate, document or instrument related to economic the Financing shall be effective until the Effective Time and “flex” terms, none of which would reduce the amount Seller Parties or any of the Financing its Subsidiaries or representatives shall be required to be funded on the Closing Date pay any commitment or adversely affect the conditionality other fee or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby incur any other liability (other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees reasonable out-of-pocket costs) in connection with the Financing Commitments prior to the Effective Time. Buyer shall promptly, upon request by the Seller Parties, reimburse the Seller Parties for all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Seller Parties or any of its Subsidiaries in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 5.8 and shall indemnify and hold harmless the Seller Parties, the Partnership and the Partnership Subsidiaries and their respective Affiliates, directors, officers, employees and representatives from and against any and all losses, liabilities, 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 to the fullest extent permitted by applicable Law and to provide reasonable access to PricewaterhouseCoopers LLP and their workpapers, and provided further that Buyer may not assert a failure to comply with this Section 5.8(a) as a ground for terminating this Agreement, or for the conditions in Article VI not being satisfied. Buyer shall, promptly upon request by the Seller Parties, reimburse the Seller Parties or the Partnership, as the case may be, for all reasonable out-of-pocket costs incurred by the Seller Parties, the Partnership, the Partnership Subsidiaries or the Seller Representatives in connection with such cooperation. Buyer shall indemnify and hold harmless the Seller Parties, the Partnership, the Partnership Subsidiaries and the Seller Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them prior to the Closing in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Partnership or the Partnership Subsidiaries and information provided by the Partnership, the Partnership Subsidiaries or Seller Representatives).
(b) Buyer shall use its commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to (i) obtain the Financing, and to satisfy the conditions to obtaining such financing set forth therein that are payable on within Buyer’s control or ability to influence, (ii) enter into definitive financing agreements with respect to the Financing (the “Financing Agreements”), so that the Financing Agreements are in effect prior to Closing, (iii) enforce its rights under the Financing Letter that are within its control, and (iv) consummate the financings contemplated by the Financing Agreements at or prior to the date hereofClosing. As Buyer shall provide to the Seller Parties copies of all material documents relating to the Financing promptly following receipt thereof and shall keep the Seller Parties reasonably informed of the date hereofstatus of the financing process relating thereto. Buyer will provide the Seller Parties with reasonable access to its lenders or prospective lenders and an opportunity to review all material documents related to such financing upon request; provided, that such documents may be redacted to comply with any confidentiality provisions applicable thereto. If any of the Financing Agreements expire, are terminated or otherwise become unavailable prior to the Closing, in whole or in part, for any reason, Buyer shall (i) promptly notify the Seller Parties of such expiration, termination or other unavailability and the reasons therefor and (ii) use its commercially reasonable efforts promptly to arrange for alternative financing (an “Alternate Financing”) to replace the financing contemplated by such expired, terminated or otherwise unavailable commitments or agreements in an amount sufficient to consummate the transactions contemplated by this Agreement (it being understood that any obligations owed by the Seller Parties to the Buyer or the Financing Sources pursuant to this Section 5.8 shall apply in connection with any Alternate Financing). Buyer acknowledges that its obligations to consummate the Partnership Interest Purchase and the other transactions contemplated hereby and to deliver the Payment the Partnership and make the payments contemplated by Article I hereof are not conditioned upon the availability of financing (including without limitation, the Financing Commitments are in full force and effect with respect toof any Alternate Financing, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, failure of any such financing shall not relieve them of any liability or obligation to consummate the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated herebyTransactions.
Appears in 1 contract
Sources: Partnership Interest Purchase Agreement (Liberty Property Limited Partnership)
Financing. (a) As Landlord and Owner shall be entitled to encumber the Hotels or any of them with one or more Authorized Mortgages which are expressly subordinate to this Agreement or in connection with which the date hereof, Purchaser has delivered following terms and conditions are satisfied (provided they shall not apply to Seller true and correct copies of the Assumed Mortgage):
(i) the executed commitment letterloan or other debt secured by such Authorized Mortgage shall not be cross-collateralized with other property or hotels which are not managed or franchised by Manager, dated as IHG or their respective Affiliates;
(ii) the principal amount secured by such Authorized Mortgage shall not exceed the sum of seventy five percent (75%) of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) and the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount sum of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject to the terms and conditions set forth therein, to lend the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portion, the “Financing”). None of the Financing Commitments has been amended or modified prior to the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, fair market value as of the date of the granting of such Authorized Mortgage of the Pledged Hotels and the other properties securing such principal amount, as reasonably determined by Landlord, Owner and the holder of any Authorized Mortgage; and
(iii) the holder of such Authorized Mortgage shall execute and deliver to Manager (Manager agreeing to likewise execute and deliver to such holder) a so-called subordination, non-disturbance and attornment agreement which shall provide that:
(A) this AgreementAgreement and Manager’s rights hereunder are subject and subordinate to the Authorized Mortgage, the lien thereof, the rights of the holder thereof and to any and all advances made thereunder, interest thereon or costs incurred in connection therewith;
(B) so long as this Agreement is in full force and effect and there exists no Manager Default which has not been cured within any applicable notice or grace period, Manager’s rights under this Agreement shall not be disturbed by reason of such subordination or by reason of foreclosure of such Authorized Mortgage or receipt of deed in lieu of foreclosure;
(C) Manager shall attorn to the holder or the Landlord at any such foreclosure or the grantee of any such deed (each, a “Successor Landlord”);
(D) in the event of such attornment, the terms of this Agreement binding on Landlord and Manager shall continue in full force and effect as a direct agreement between such Successor Landlord and Manager, upon all the terms, conditions and covenants set forth herein, except that the Successor Landlord shall not be (1) bound by any payment of Owner’s Fixed Priority or the Owner’s Residual Distribution in advance of when due; (2) bound by any amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date of this Agreement made after the commitments contained date that Manager first had written notice of such Authorized Mortgage without the consent of the holder thereof; (3) liable in any way to Manager for any act or omission, neglect or default on the part of Landlord or Owner under this Agreement; (4) obligated to perform any work or improvements to be done by Landlord or Owner or to make any advances except for those advances to be made pursuant to Section 5.2(c) from and after the date on which such Successor Landlord acquired the Hotel(s); or (5) subject to any counterclaim or setoff which theretofore accrued to Manager against Landlord or Owner;
(E) In the event of a casualty or condemnation affecting any Pledged Hotel which does not result in the Financing Commitments have not been withdrawn termination of this Agreement with respect to such Pledged Hotel, the net insurance proceeds or rescinded in any respectAward shall be applied to the restoration of such Hotel as herein provided; and
(F) Such other terms as are customary for similar agreements.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce In the amount event less than all of the Financing Hotels are to secure the loan or other debt secured by an Authorized Mortgage, Owner shall have the right to cause the Pledged Hotels to be funded on managed pursuant to a separate management agreement which agreement shall be for a term equal to the Closing Date or adversely affect the conditionality or availability unexpired portion of the Financing contemplated thereby Term and otherwise on substantially the Closing Date)same terms of this Agreement. In connection with entering into such separate management agreement, as the parties shall make such allocations of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditionsOwner’s Fixed Priority, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth amounts in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereofReserve Account, the Financing Commitments are in full force and effect with respect toWorking Capital, and are the legalany outstanding advances made by Owner, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, Manager or their respective Affiliates as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated herebyrequired.
Appears in 1 contract
Sources: Management Agreement (Hospitality Properties Trust)
Financing. (a) As of the date hereof, Purchaser and concurrently with the execution of this Agreement, ▇▇▇▇▇▇ has delivered to Seller true the Company true, correct and correct complete copies of (i) the duly executed debt commitment letter, dated as of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) Parent and the Debt Financing Sources party thereto (including all exhibits, schedules, term sheets, amendments, supplements, modifications and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended amended, modified or modified replaced in accordance with the terms hereof, collectively, the “Financing CommitmentsDebt Commitment Letter”) together with true, correct and complete copies of executed fee letters (including all exhibits, schedules, term sheets, amendments, supplements, modifications and annexes thereto, as may be amended, modified or replaced in accordance with the terms hereof, collectively, the “Fee Letters”); provided that the Fee Letters may be redacted in a customary manner solely with respect to the fee amounts and the amount of the pricing flex (but not covenants or other terms), none of which, individually or in the aggregate, affects the conditionality, enforceability, termination or aggregate principal amount of the Debt Financing or prevents or materially delays the Closing in connection with the Debt Commitment Letter (any Fee Letter and, together with the Debt Commitment Letter, the “Debt Financing Letters”) and any other agreements related thereto, pursuant to which the Debt Financing Sources party thereto have committed, subject to the terms and conditions set forth therein, to lend the amounts set forth thereintherein to Parent or any other Subsidiary of India Parent (together with any Alternate Debt Financing, a portion of which shall be used the “Debt Financing”) for the purposes purpose of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portion, the “Financing”). None of the Financing Commitments has been amended or modified prior to the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, as of the date of this Agreement, no such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as As of the date hereof there are no side letters hereof, the Debt Financing Letters have not been modified, amended, supplemented or contracts to which Purchaser altered in any respect and none of the Debt Financing Letters or SigmaTEK is a party that impose conditionsthe respective commitments or obligations thereunder have been terminated, affect the availability of reduced, withdrawn, rescinded or modifyotherwise repudiated in any respect, amend or expand the conditions and, to the funding Knowledge of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees Parent, no termination, reduction, withdrawal, rescission or other fees in connection with the Financing Commitments that are payable on or prior to the date hereofrepudiation thereof is contemplated. As of the date hereof, no modification, amendment, supplement or alteration to any of the Debt Financing Commitments Letters is currently contemplated by ▇▇▇▇▇▇ except as permitted under Section 7.17(a)(ii). There are no other contracts, side letters or arrangements to which Parent or any of its Affiliates is a party relating to the Debt Financing Letters or the Debt Financing that would adversely affect the funding of the amount of the Debt Financing necessary to fund the Debt Financing Uses. As of the date hereof, no Debt Financing Source has notified Parent or any of its Affiliates or Representatives of its intention to terminate any of the Debt Financing Letters or not to provide its portion of the Debt Financing.
(c) The Debt Financing, when funded in full force accordance with the Debt Financing Letters and giving effect to any “flex” provision in the Fee Letters (including with respect toto fees and original issue discount), together with funds otherwise available to Parent, will provide Parent with unrestricted cash on the Closing Date in an amount sufficient to (i) satisfy all obligations of Parent under this Agreement, the transactions contemplated by this Agreement, the Debt Financing Letters or any documents or instruments delivered in connection with this Agreement or the transactions contemplated by this Agreement and are (ii) pay (A) the aggregate consideration required to be paid by Parent hereunder, (B) any and all fees and expenses required to be paid by Parent on the Closing Date and (C) any and all amounts in connection with the refinancing or repayment of the Company Credit Agreement and, to the extent required, the Redemption, Discharge and Exchange Offers/Consent Solicitations, in each case, in connection with the transactions contemplated by this Agreement or the Debt Commitment Letter, as applicable (the foregoing clauses (i) and (ii), the “Debt Financing Uses”).
(d) As of the date hereof, the Debt Financing Letters (i) constitute the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK of Parent and, to the knowledge Knowledge of PurchaserParent, each of all the other parties thereto thereto, (exceptii) are in full force and effect and (iii) are enforceable against Parent and, to the Knowledge of Parent, the other parties thereto, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting case in accordance with their terms and subject to the enforcement of creditors’ rights generally, Bankruptcy and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity))Equity Exception. As of the date hereof, other than as expressly set forth in the Debt Financing Letters, there are no conditions precedent or other contingencies related to the funding of the full amount of proceeds of the Debt Financing, other than when taken together with funds otherwise available to Parent as expressly set forth in of the Closing Date, necessary to fund the Debt Financing Commitment Documents delivered Uses pursuant to Seller prior any agreement relating to the date hereofDebt Financing to which Parent or any of its Affiliates is a party. As of the date hereof, neither Parent nor, to the Knowledge of Parent, any other parties to any Debt Financing Letter, is in default in the performance, observation or fulfillment of any obligation, covenant or condition contained in any Debt Financing Letter, and no event has occurred whichor circumstance exists that, with or without notice, lapse of time or both, would could reasonably be expected to (i) constitute or result in a default under or breach on the part of SigmaTEK or Purchaser under Parent or, to the Financing Commitment Documents that would impair the availability Knowledge of the Financing Parent, on the Closing Datepart of any other party under any Debt Financing Letter, (ii) constitute or result in a failure to satisfy a condition precedent by Parent or, to the availability Knowledge of Parent, any other party to any Debt Financing Letter to satisfy, or any delay in satisfaction of, any term, condition or other contingency to the funding of the full amount of the Debt Financing on necessary to fund the part of SigmaTEK Debt Financing Uses or Purchaser or, (iii) to make any assumptions or any of the knowledge of Purchaser, statements set forth in any Debt Financing Letter inaccurate in any material respect or (iv) otherwise result in any portion of the Financing being unavailable on Debt Financing, when taken together with funds otherwise available to Parent as of the Closing Date, so long as necessary to fund the conditions to Debt Financing Uses being unavailable on a timely basis, and in any event, not later than the Financing are satisfied and each condition set forth in Section 8.2 is satisfiedClosing. As of the date hereof, Parent has no reason to believe (both before and after giving effect to any “flex” provisions contained in any Fee Letter), assuming the accuracy satisfaction of the representations and warranties set forth in Article IV such that the condition conditions set forth in Section 8.2(a) is satisfied8.1 and Section 8.2, the performance by Seller that any term or condition of its obligations under this Agreement and the satisfaction closing of the other conditions set forth Debt Financing contained in Sections 8.1the Debt Financing Letters will be unable to be satisfied on a timely basis (and in any event, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe not later than the Closing) or that any of the conditions full amounts committed pursuant to the Debt Financing contemplated by Letters necessary to fund the Debt Financing Commitments applicable to it Uses will not be satisfied available at the Closing. As of the date hereof, Parent has not incurred any obligation, commitment, restriction or liability of any kind, and is not contemplating or aware of any obligation, commitment, restriction or liability of any kind, in either case which could reasonably be expected to delay, impair or adversely affect the parties to the Debt Financing Letters. As of the date hereof, Parent has paid in full any and all commitment or other fees required to be paid on or prior to the date hereof pursuant to the terms of the Debt Financing Letters and will pay in full any such amounts due on or before the Closing Date. Purchaser affirms that it is not a condition .
(e) Notwithstanding anything contained in this Agreement to the Closing or contrary, Parent hereby acknowledges and agrees that its obligations hereunder are not subject to any of conditions regarding its other obligations under this Agreement that Purchaser obtains the Financing or any other Person’s ability to obtain financing for or related to any the consummation of the transactions contemplated herebyby this Agreement.
(f) Parent is not aware of any direct or indirect limitation or other restriction on the ability of any bank, investment bank or other potential provider of the Debt Financing (including the Debt Financing Sources) from providing or seeking to provide debt or equity financing or financial advisory services to any Person, in each case, in connection with a transaction relating to the Company, including the transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Organon & Co.)
Financing. (a) As of the date hereofof this Agreement, Purchaser Acquiror has delivered to Seller true and correct copies of (i) the received an executed commitment letter, letter dated as of February 17, 2003 (the date hereof, among Purchaser, SigmaTEK Systems, LLC "COMMITMENT LETTER") from Credit Suisse First Boston (“SigmaTEK”) and the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”"CSFB"), pursuant to which CSFB has committed, subject to the terms and conditions set forth therein, to provide to Parent the amount of financing set forth in the Commitment Letter (the "FINANCING"), to complete the transactions contemplated hereby. A true and complete copy of the Commitment Letter has been previously provided to the Company. Acquiror has fully paid any and all commitment fees or other fees required by such Commitment letter to be paid as of the date hereof (and will duly pay any such fees that become due after the date hereof). The Commitment Letter is valid and in full force and effect, does not contain any material misrepresentation by Parent (other than those resulting from inaccurate information provided by the Company) and no event has occurred which (with or without notice, lapse of time or both) would constitute a breach thereunder on the part of Holding, Parent or Acquiror. It is the good faith belief of Holding, Parent and Acquiror that the Financing Sources party thereto will be obtained.
(b) Parent has entered into a subscription agreement dated as of February 17, 2003 (the "SUBSCRIPTION AGREEMENT") and a commitment letter dated as of February 17, 2003 (the "▇▇▇▇ STRATEGIC COMMITMENT LETTER") with certain existing stockholders of Parent named therein (including Affiliates of ▇▇▇▇ Capital Partners, L.P.), pursuant to which such stockholders (or their assignees or designees) have committed, subject to the terms and conditions set forth therein, to lend the amounts set forth therein, a portion provide to Parent not less than $100 million and up to $145 million of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portion, the “Financing”). None of the Financing Commitments has been amended or modified prior financing to the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, as of the date of this Agreement, no such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly and satisfy the financing conditions set forth in clauses (a) and (d) of the Financing Commitments delivered to Seller prior section of Exhibit A of the Commitment Letter titled "Acquisition" (collectively, the "ADDITIONAL FINANCING"). A true and complete copy of each of the Subscription Agreement and the ▇▇▇▇ Strategic Commitment Letter has been previously provided to the date hereofCompany. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As Each of the date hereof, Subscription Agreement and the Financing Commitments are ▇▇▇▇ Strategic Commitment Letter is valid and in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, which (with or without notice, lapse of time or both, ) would reasonably be expected to (i) constitute a default or breach thereunder on the part of SigmaTEK Holding, Parent or Purchaser Acquiror. It is the good faith belief of Holding, Parent and Acquiror that the Additional Financing will be obtained.
(c) As of the date of this Agreement, there are no outstanding Revolving Loans (as defined in the Parent Credit Agreement) and approximately $1.3 million of L/C Exposure (as defined in the Parent Credit Agreement) under the Financing Commitment Documents Parent Credit Agreement.
(d) Assuming that would impair the availability information provided by the Company to Parent in writing (including in electronic format) with respect to the Company's and its Subsidiaries' historical costs is true and correct in all respects material to this representation and warranty and was derived from the books and records of the Financing on Company and its Subsidiaries, the Closing Date, (ii) constitute a failure aggregate annualized cost savings relating to satisfy a condition precedent ongoing operations of the Company and its Subsidiaries and Parent and its Subsidiaries after giving effect to the availability Merger (as such amount is calculated for purposes of the Financing on the part Section 8 of SigmaTEK or Purchaser or, (iii) Exhibit D to the knowledge of Purchaser, result in Financial Commitment) would equal at least the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition amount set forth in Section 8.2 is satisfied. As 5.7 of the date hereofHolding, assuming the accuracy of the representations Parent and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated herebyAcquiror Disclosure Schedule.
Appears in 1 contract
Sources: Merger Agreement (Insignia Financial Group Inc /De/)
Financing. (a) As of the date hereof, Purchaser Parent has delivered to Seller true the Company true, correct and correct complete fully executed copies of (ia) the executed commitment letter, dated as of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) Parent and the Debt Financing Sources thereto (party thereto, including all exhibits, schedules, annexes and annexes thereto, and the executed fee amendments to such commitment letter associated therewith and referenced therein (collectively, the “Financing Debt Commitment DocumentsLetter”) and (providedb) the fee letter, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject to the terms and conditions set forth therein, to lend the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portion, the “Financing”). None of the Financing Commitments has been amended or modified prior to the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, as of the date of this Agreement, no such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments dated as of the date hereof, with respect thereto, including all exhibits, schedules, annexes and amendments to such fee letter (provided that the fee amounts, pricing caps and the rates, amounts and other economic terms included in the “market flex” and certain other economic terms of such fee letter (and its exhibits, schedules, annexes and amendments thereto) may be redacted so long as none of such redacted provisions adversely affect the conditionality, enforceability or termination provisions of the Debt Letters or reduce the aggregate principal amount of the Debt Financing contemplated hereby), and in each case, in effect as of the date of this Agreement (along with the Debt Commitment Letter, the “Debt Letters”), pursuant to which and subject to the terms and conditions thereof the Debt Financing Sources party thereto have severally committed to lend the amounts set forth therein to Parent (the provision of such funds as set forth therein, but subject to the provisions of Section 6.15, the “Debt Financing”) for the purposes set forth in such Debt Letters. As of the execution and delivery of this Agreement, the Debt Letters have not been amended, restated or otherwise modified or waived in any respect (and no amendment, restatement, modification or waiver is contemplated, other than customary joinders solely to add Debt Financing Sources) and to the Knowledge of Parent (i) the commitments contained in the Financing Commitments Debt Letters have not been withdrawn withdrawn, rescinded, amended, restated or rescinded otherwise modified in any respect.
respect and (bii) Except for fee letters (complete copies of which have no such withdrawal, rescission, amendment, restatement or modification has been provided to Seller; provided, however, that threatened by any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Debt Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a Source party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereofthereto. As of the date hereofexecution and delivery of this Agreement, the Financing Commitments Debt Letters are in full force and effect with respect to, and are constitute the legal, valid, enforceable and binding and enforceable obligations of, Purchaser and SigmaTEK of each of Parent and, to the knowledge Knowledge of PurchaserParent, each of the other parties thereto (except, in each case, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws of general applicability relating to or affecting the enforcement of creditors’ rights generallyrights, and general or by principles governing the availability of equity (regardless of equitable remedies, whether such enforceability is considered in a proceeding Proceeding at law or in Law or equity)). As of the date hereofof this Agreement, there are no conditions precedent or other contingencies related to the funding of the full amount of the FinancingDebt Financing pursuant to the Debt Letters, other than as expressly set forth in such letters. The financial resources of Parent are, and will be as of the Financing Commitment Documents delivered Closing, in the aggregate, sufficient for the satisfaction of all of Parent’s obligations under this Agreement, including the payment of the aggregate Merger Consideration (including all amounts payable in respect of Company RSUs and Company PSUs under this Agreement), and any other amounts required to Seller prior to be paid in connection with the date hereofconsummation of the Transactions. As of the date hereofof this Agreement, assuming the satisfaction of the conditions to the Merger set forth in Section 7.1 and Section 7.3, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to (i) constitute a breach or default or breach on the part of SigmaTEK or Purchaser Parent under the Financing Commitment Documents that would impair the availability of the Financing on the Closing DateDebt Letters or, (ii) constitute a failure to satisfy a condition precedent to the availability Knowledge of the Parent, any Debt Financing on the part of SigmaTEK or Purchaser or, (iii) Source party to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfiedDebt Letters. As of the date of this Agreement, there are no side letters or other agreements, Contracts or arrangements related to the Debt Financing or the funding of all or any part of the Debt Financing other than as expressly set forth in the Debt Letters. Parent has fully paid all commitment fees or other fees required to be paid on or prior to the date of this Agreement in connection with the Debt Financing and satisfied all of the other terms and conditions required to be satisfied by Parent on or prior to the date hereof. As of the date of this Agreement, assuming the accuracy satisfaction of the representations and warranties set forth in Article IV such that conditions to the condition Merger set forth in Section 8.2(a7.1 and Section 7.3, (i) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have Parent has no reason to believe that any of the conditions to the Debt Financing contemplated by the Financing Commitments applicable to it will not be satisfied on satisfied, (ii) the Parent does not have Knowledge, as of the date of this Agreement, of any reason that the full amount of the Debt Financing will not be made available to Parent, in each case, as of the time at which the Closing Date. Purchaser affirms that it is required to occur pursuant to Section 2.3, subject to and in accordance with the terms of the Debt Letters.
(b) Parent is not a condition entering into this Agreement with the intent to hinder, delay or defraud either present or future creditors of the Closing Company or any of its Subsidiaries. Each of Parent and the Surviving Corporation will be Solvent as of immediately after the consummation of the Merger and the other Transactions. For the purposes of this Agreement, the term “Solvent”, when used with respect to any Person, means that, as of any date of determination, (i) the amount of the “fair saleable value” of the assets of such Person will, as of such date, exceed the sum of (A) the value of all “liabilities of such Person, including contingent and other liabilities,” as of such date, as such quoted terms are generally determined in accordance with applicable Laws governing determinations of the insolvency of debtors, and (B) the amount that will be required to pay the probable liabilities of such Person, as of such date, on its existing debts (including contingent and other liabilities) as such debts become absolute and mature, (ii) such Person will not have, as of such date, an unreasonably small amount of capital for the operation of the businesses in which it is engaged or proposed to be engaged following such date, and (c) such Person will be able to pay its liabilities, as of such date, including contingent and other liabilities, as they mature. For purposes of this definition, “not have an unreasonably small amount of capital for the operation of the businesses in which it is engaged or proposed to be engaged” and “able to pay its liabilities, as of such date, including contingent and other liabilities, as they mature” means that such Person will be able to generate enough cash from operations, asset dispositions or refinancing, or a combination thereof, to meet its obligations under this Agreement that Purchaser obtains as they become due.
(c) Without limiting Section 9.9, in no event shall the Financing receipt or availability of any funds or financing by or to Parent or any of its Affiliates or any other financing for or related transaction be a condition to any of the transactions contemplated herebyobligations of Parent or Merger Sub hereunder.
Appears in 1 contract
Financing. (a) As of the date hereof, Purchaser has delivered to Seller true and correct copies of (i) the executed commitment letter, dated as of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) and the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject Subject to the terms and conditions set forth therein, to lend the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portion, the “Financing”). None of the Financing Commitments has been amended or modified prior to the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, as of the date of this Agreement, Parent shall use its reasonable best efforts to obtain the Debt Financing no such amendment or modification is contemplated later than the Closing Date on the terms and conditions (other thanincluding “market flex” provisions) described in the Debt Financing Commitment, for including using its reasonable best efforts to (i) comply with its obligations under the avoidance of doubt, amendments to Debt Financing Commitment and any definitive agreements related thereto (the draft credit agreement contemplated thereby, and amendments or joinders to the “Debt Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereofDocuments”), (ii) maintain in effect the Debt Financing Commitment, (iii) negotiate and as of enter into Debt Financing Documents on a timely basis on terms and conditions (including the date of this Agreement the commitments “market flex” provisions) contained in the Debt Financing Commitments have Commitment or otherwise not been withdrawn or rescinded less favorable in any respect.
material respect with respect to conditionality to Parent in the aggregate than those contained in the Debt Financing Commitment (b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, it being understood and agreed that in no event may any such fee letter may redacted as to economic and “flex” termsDebt Financing Document contain any term or condition that would not be permitted under this Section 6.17 if it were an amendment, none supplement, modification, waiver of which would reduce the amount any provision, or replacement of the Debt Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing DateCommitment), (iv) satisfy on a timely basis all conditions contained in the Debt Financing Commitment that are applicable to Parent and within its control, including the payment of any commitment, engagement or placement fees required as of a condition to the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the Debt Financing and (v) if all conditions to the funding of Debt Financing Commitment have been satisfied, cause the Lenders to consummate the Debt Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on at or prior to the date hereof. As of the date hereof, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto Closing Date (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing it being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms understood that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains for Parent to obtain the Debt Financing). Parent shall give the Company prompt notice upon having knowledge of any breach by any Lender under the Debt Financing Documents or any other financing for or related to termination of any of the transactions contemplated hereby.Debt Financing Documents. Other than as set forth in this Section 6.17, Parent shall not,
Appears in 1 contract
Financing. (a) As Prior to the earlier of the date hereofEffective Time and the valid termination of this Agreement in accordance with ARTICLE VII, Purchaser has delivered Parent shall use its reasonable best efforts to Seller true take, or cause to be taken, all actions and correct copies of do, or cause to be done, all things necessary or advisable to arrange and obtain and consummate the Financing on or prior to the Closing Date, including, but not limited to, using its reasonable best efforts with respect to the following items: (i) maintaining in effect the executed commitment letterCommitment Letters (subject to replacement in compliance with this Agreement or as required by Section 5.20 following a Financing Failure Event); (ii) satisfying on a timely basis all Financing Conditions applicable to Parent and Merger Sub (other than those conditions that by their nature are to be satisfied at the Closing, dated but subject to the satisfaction or waiver of such conditions at the Closing); (iii) negotiating, executing and delivering Debt Financing Documents that reflect terms no less favorable to Parent than the terms contained in the Debt Commitment Letter (except to the extent acceptable to Parent in its sole discretion, so long as of any new or revised terms would not be Prohibited Financing Amendments); (iv) in the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) event that the conditions set forth in Section 6.1 and Section 6.2 and the Financing Conditions have been satisfied or, upon funding would be satisfied, use its reasonable best efforts to cause the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce fund the amount of the Debt Financing and the Guarantors to fund the amount of the Equity Financing necessary to fund the Required Funding Amount; and (v) enforcing Parent’s rights under the Debt Commitment Letter in the event of a Financing Failure Event. Notwithstanding anything to the contrary contained in this Agreement, in no event shall the reasonable best efforts of Parent require or be deemed or construed to require Parent to (I) seek equity financing from any source (other than the Equity Financing), (II) pay any fees materially in excess of those contemplated by the Debt Commitment Letter (whether to secure waiver of any conditions contained therein or otherwise) or (III) arrange or obtain any Alternative Financing having terms and conditions (including any flex provisions applicable thereto) that are materially less favorable to Parent than those set forth in the Debt Commitment Letter (except to the extent acceptable to Parent in its sole discretion, so long as any such less favorable terms would not be Prohibited Financing Amendments).
(b) Parent shall give the Company prompt notice of any breach that would reasonably be expected to materially delay or prevent the Closing or repudiation by any party to any Commitment Letter of which Parent or its Affiliates becomes aware. Without limiting Parent’s other obligations under this Section 5.20, if a Financing Failure Event occurs, Parent shall (i) promptly notify the Company of such Financing Failure Event and the reasons therefor, (ii) use its reasonable best efforts to obtain alternative financing (“Alternative Financing”) from the original Financing Sources or alternative Financing Sources on terms and conditions that are no less favorable to Parent than those set forth in the Debt Commitment Letter (except to the extent acceptable to Parent in its sole discretion, so long as any such less favorable terms would not be Prohibited Financing Amendments); provided, that the Parent and Merger Sub shall not be required to pay any fees in excess of those contemplated by the Debt Commitment Letter (including any “flex” provisions applicable thereto), and the Alternative Financing shall not effect any Prohibited Financing Amendments, and (iii) use its reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment letter and related fee letter that provides for such Alternative Financing (with any such Alternative Financing being deemed to constitute “Debt Financing”, the commitment letter and fee letter with respect thereto (which fee letter may be redacted in the manner contemplated by Section 4.11) being deemed to constitute a “Debt Commitment Letter” and the definitive documentation with respect thereto being deemed to constitute the “Debt Financing Documents”). Neither Parent nor any of its Affiliates shall, without the prior consent of the Company (such consent not to be funded unreasonably withheld, conditioned or delayed), amend, modify, supplement, restate, substitute or replace any of the Commitment Letters except for (i) substitutions and replacements pursuant to the immediately preceding sentence and/or (ii)(1) with respect to the Debt Commitment Letter, any such amendment, modification, supplement, restatement, substitution or replacement that would not (A) reduce the aggregate amount of the Debt Financing below the amount, taking into account all other sources of proceeds, necessary to fund the Required Funding Amount, (B) impose new or additional conditions or expand any of the conditions to the receipt of the Debt Financing in a manner that would reasonably be expected to (I) materially delay or prevent the Closing or (II) make the timely funding of the Debt Financing or satisfaction of the conditions to obtaining the Debt Financing on or prior to the Closing Date less likely to occur, or (C) adversely affect impact the conditionality or availability ability of Parent to enforce its rights against any other party to the Financing contemplated thereby on Debt Commitment Letter (the Closing Datelimitations set forth in this clause (1), as the “Prohibited Financing Amendments”); provided that, notwithstanding the foregoing, Parent may be amended amend, modify, supplement, restate, substituted or modified replace the Debt Commitment Letter (x) in accordance with the terms hereof“market flex” provisions thereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject to the terms and conditions set forth therein, to lend the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein and/or (such portion, the “Financing”). None of the Financing Commitments has been amended or modified prior to the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, as of the date of this Agreement, no such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely y) to add lenders, lead arrangers, bookrunners, syndication agents agents, managers or similar other entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and Debt Commitment Letters as of the date of this Agreement Agreement; or (2) with respect to the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect.
(b) Except for fee letters (complete copies of which have been provided to Seller; providedEquity Commitment Letter, however, that any such fee letter may redacted as amendment, modification, supplement, restatement, substitution or replacement would not (A) add new (or otherwise expand, amend or modify any existing) conditions to economic and “flex” termsthe consummation of all or any portion of the Equity Financing, none of which would (B) reduce the amount of the Equity Financing below the amount, taking into account all other sources of proceeds, necessary to be funded on fund the Closing Date or Required Funding Amount, (C) adversely affect in any material respect the conditionality or availability ability of Parent to enforce its rights against the Financing contemplated thereby on other parties to the Closing Date)Equity Commitment Letter, as of the date hereof there are no side letters so amended, modified, supplemented, restated, substituted or contracts to which Purchaser or SigmaTEK is a party that impose conditionsreplaced, affect the availability of or modify, amend or expand the conditions relative to the funding ability of the Financing or the transactions contemplated hereby Parent to enforce its rights against such other than as expressly set forth in the Financing Commitments delivered to Seller prior parties to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees Equity Commitment Letter as in connection with the Financing Commitments that are payable effect on or prior to the date hereof. As of the date hereof, or (D) otherwise be reasonably expected to delay materially or prevent the Financing Commitments are Closing. Upon written request from the Company, Parent shall keep the Company informed on a reasonably current basis and in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each reasonable detail of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting status of Parent’s efforts to arrange the enforcement of creditors’ rights generally, Debt Financing. Parent and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as Merger Sub expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents acknowledge and agree that would impair the availability of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its their obligations under this Agreement and Agreement, including their obligations to consummate the satisfaction Merger, are not subject to, or conditioned on, Parent’s or Merger Sub’s receipt of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated herebyfinancing.
Appears in 1 contract
Financing. (a) As of the date hereof, Purchaser has delivered to Seller true Innkeepers REIT true, correct and correct complete copies of (i) the executed commitment letter, dated as of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) and the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Dateletter(s), (as the same may be amended or modified in accordance with the terms hereof, collectivelypursuant to Section 5.9, the “"Debt Financing Commitments”"), pursuant to which the Financing Sources party lender parties thereto have agreed, subject to the terms and conditions thereof, to provide or cause to be provided the debt amounts set forth therein (collectively, the "Debt Financing") and (ii) executed equity commitment letter(s), (as the same may be amended pursuant to Section 5.9, the "Equity Financing Commitments" and, together with the Debt Financing Commitments, the "Financing Commitments"), pursuant to which Apollo Investment Corporation (the "Sponsor") has committed, subject to the terms and conditions thereof, to invest the amount set forth thereintherein (the "Equity Financing" and, to lend together with the amounts set forth thereinDebt Financing, a portion of which shall be used for the purposes of funding the purchase "Financing"). As of the Purchased Equity and the other transactions contemplated by date of this Agreement and paying the related fees and expenses specified herein (such portionAgreement, the “Financing”). None none of the Financing Commitments has been amended or modified prior to the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, as of the date of this Agreement, no such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated therebymaterial respect, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date of this Agreement the respective commitments contained in the Financing Commitments have not been withdrawn or rescinded in any material respect.
(b) Except for fee letters (complete copies . As of which have been provided to Seller; providedthe date hereof, howeverno event has occurred which, that with or without notice, lapse of time, or both, would constitute a default or breach on the part of any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount Purchaser Party under any term or condition of the Financing Commitments and Purchaser does not know of any facts or circumstances that may reasonably be expected to be funded on the Closing Date or adversely affect the conditionality or availability result in any of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereofnot being satisfied. As of the date hereofof this Agreement, the Financing Commitments are in full force and effect with respect toand, and are in the forms delivered to Innkeepers REIT, constitute legal, valid, valid and binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (Purchaser Parties party thereto, except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium to the extent amended or other similar Laws affecting replaced in accordance with their terms of the enforcement terms of creditors’ rights generallythis Agreement. Subject to the terms and conditions of the Financing Commitments, and general principles subject to the terms and conditions of equity (regardless of whether such enforceability is considered this Agreement, the aggregate proceeds contemplated by the Financing Commitments shall be sufficient for the Purchaser Parties to consummate the Merger and the other transactions contemplated by this Agreement upon the terms contemplated hereby, and to pay all related fees and expenses for which the Purchaser Parties will be responsible in a proceeding in Law or equity))connection herewith. As of the date hereof, there There are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents Commitments. The Purchaser Parties released ▇▇▇▇▇▇ (together with its Affiliates, the "Lender") from any and all agreements and arrangements that would prohibit or limit the ability of the Lender to provide debt financing to any Person making or contemplating making an Acquisition Proposal.
(i) Guarantee. Concurrently with the execution of this Agreement, the Guarantor has delivered to Seller prior to Innkeepers REIT the date hereof. As Guarantee, dated as of the date hereofof this Agreement, no event has occurred whichin favor of Innkeepers REIT and Innkeepers LP, with or without notice, lapse of time or both, would reasonably be expected respect to (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller the Purchaser Parties, respectively, of its their obligations under this Agreement; provided, however, that notwithstanding anything in this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated contrary, the maximum recovery to be realized by the Financing Commitments applicable to it will Innkeepers REIT, shall not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated herebyexceed $50,000,000.
Appears in 1 contract
Financing. (a) As Subject to the other provisions of this Agreement, Greystone shall use reasonable best efforts to take, or cause to be taken, all actions necessary or advisable to obtain, or cause to be obtained, the date hereofDebt Financing on the terms and conditions, Purchaser has delivered to Seller true and correct copies of (i) taken as a whole, described in the executed commitment letter, dated as of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) and the Financing Sources thereto Debt Commitment Letters (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that as such Financing Commitment Documents terms may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date modified or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified adjusted in accordance with the terms hereof, collectively, of the “Financing Commitments”flex” provisions contained in any Fee Letter), pursuant including using reasonable best efforts to which (i) maintain in effect the Debt Commitment Letters until the funding of the Debt Financing Sources party thereto have committedat or prior to Closing, subject (ii) negotiate definitive agreements with respect to the Debt Financing (the “Definitive Agreements”) consistent in all material respects with the terms and conditions set forth thereincontained in the Debt Commitment Letters (including any related “flex” provisions) or on other terms not less favorable, in the aggregate, to lend Greystone than the amounts set forth therein, a portion terms and conditions (including the “flex” provisions) contemplated by the Debt Commitment Letters but only to the extent that any such other terms would not reasonably be expected to adversely impact or delay in any material respect the ability of which shall be used for Greystone to consummate the purposes of funding the purchase of the Purchased Equity Transactions and the other transactions contemplated by Ancillary Transactions in accordance with this Agreement and paying or obtain the related fees and expenses specified herein Debt Financing (such portionit being agreed that, notwithstanding the “Financing”). None of foregoing, Greystone may modify, supplement or amend the Financing Commitments has been amended or modified prior to the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, as of the date of this Agreement, no such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely Debt Commitment Letters to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had that have not executed the Financing Commitments Debt Commitment Letters as of the date hereofhereof on the same terms), (iii) satisfy (or obtain a waiver of) all conditions applicable to Greystone to obtaining the Debt Financing and as (iv) upon satisfaction of all of the date of conditions in this Agreement to Greystone’s and Sonoma’s obligations to effect the commitments contained Closing, and satisfaction of all of the conditions set forth in the Debt Commitment Letters, at the request of Sonoma, enforcing the Lenders’ funding obligations (and the rights of Greystone) under the Debt Commitment Letters. Greystone shall furnish correct and complete copies of the Definitive Agreements to Sonoma promptly upon their execution, provided that the same fee amounts and other commercially sensitive information redacted from the Fee Letters provided to Sonoma shall be redacted from the Definitive Agreements. Notwithstanding anything in this Section 5.10 to the contrary, this Section 5.10 shall not be applicable to the Debt Financing Commitments have Commitment that is intended to replace the Greystone Term Loan Facility if the Restricted Financing Commitment Amendment cannot be obtained (the “Greystone Term Financing Commitment”) on and after the date the Restricted Financing Commitment Amendment has been withdrawn or rescinded in any respectobtained.
(b) Except for fee letters Greystone shall not, without the prior written consent of Sonoma, (complete copies i) permit any amendment or modification to, or any waiver of, any provision or remedy under, or replace (except as expressly set forth under Section 5.10(c)), the Debt Commitment Letters if such amendment, modification, waiver or replacement (A) would add any new (or modify any existing) condition to the Debt Financing Commitments (unless such new condition or modified condition would not reasonably be expected to prevent, impede or in any material respect delay the consummation of which have been provided to Seller; providedthe Debt Financing), however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce (B) reduces the aggregate amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Debt Financing contemplated thereby on by the Closing Date), Debt Commitment Letters delivered as of the date hereof there are no side letters or contracts in a manner that would adversely impact the ability of Greystone to which Purchaser or SigmaTEK is a party that impose conditionsconsummate the Transactions and the Ancillary Transactions and pay the Required Amount, affect (C) adversely impair the availability ability of or modify, amend or expand the conditions Greystone to enforce its rights against other parties to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereofDebt Commitment Letters, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK andif any, to require such parties to provide the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Debt Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, (D) would reasonably be expected to (i) constitute a default prevent, impede or breach on in any material respect delay the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability consummation of the Financing on the Closing DateDebt Financing, or (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK terminate any Debt Commitment Letter unless (x) such Debt Commitment Letter is replaced with another commitment letter or Purchaser or, (iii) to the knowledge of Purchaser, comparable financing commitment that would not result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to items described in clause (i)(A) through (D) of this sentence (collectively, the “Restricted Financing contemplated by Commitment Amendments”) (provided that the existence or exercise of the “flex” provisions contained in any Fee Letter shall not constitute a Restricted Financing Commitments applicable to it will not be satisfied on Commitment Amendment; and provided, further, that Greystone may amend or modify, or waive any provision or remedy under, any of the Closing Date. Purchaser affirms that it Debt Commitment Letters if such amendment, modification or waiver is not a condition Restricted Financing Commitment Amendment, it being understood that any amendment or modification solely to add lenders, lead arrangers, bookrunners, syndication agents and similar entities (and make incidental or conforming amendments or modifications to reflect the addition of any such lenders, lead arrangers, bookrunners, syndication agents and similar entities) shall not be a Restricted Financing Commitment Amendment) or (y) in the case of the Greystone Term Financing Commitment, an amendment to the Closing or any of its other obligations under this Agreement that Purchaser obtains Greystone Term Loan Facility has been obtained to permit the Financing or any other financing for or related to any consummation of the transactions contemplated hereby.Transactions and Ancillary Transactions without the occurrence of an
Appears in 1 contract
Sources: Purchase and Contribution Agreement (Skilled Healthcare Group, Inc.)
Financing. (a) As Parent shall, and shall cause its Subsidiaries to, use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things reasonably necessary to consummate the funding of the date hereofFinancing or any Substitute Financing in an amount sufficient, Purchaser has delivered together with cash on hand and/or the proceeds of any offering (any such offering, “Permanent Financing”) that in each case replaces or supplements the Financing consistent with the terms set forth in this Section 5.15, to Seller true consummate the Merger and correct copies the other transactions contemplated hereby (including the payment of the Merger Consideration, any other amounts required to be paid pursuant to Article I and any other fees and expenses reasonably expected to be incurred in connection with this Agreement, the Merger and the other transactions contemplated hereby) no later than the Closing, including, to the extent necessary to consummate the Merger and such other transactions, using reasonable best efforts to (i) maintain in effect the executed commitment letter, dated as Financing Documents and in all material respects comply with all of their respective obligations thereunder and (ii) satisfy on a timely basis all the conditions to the funding of the date hereofFinancing that are in Parent’s (or its Subsidiaries’) control. In the event that all conditions set forth in Section 6.1 and Section 6.2 have been satisfied or waived or, among Purchaserupon funding of the Financing, SigmaTEK Systemsshall have been satisfied or waived, LLC (“SigmaTEK”) Parent shall, and shall cause its Subsidiaries to, use reasonable best efforts to cause the Persons providing the Financing to fund on the Closing Date the Financing, to the extent the proceeds thereof are required to consummate the Merger and the Financing Sources thereto other transactions contemplated hereby (including all exhibitsthe payment of the Merger Consideration, schedulesany other amounts required to be paid pursuant to Article I and any other fees and expenses reasonably expected to be incurred in connection with this Agreement, and annexes thereto, the Merger and the executed fee letter associated therewith other transactions contemplated hereby). Parent and/or Borrower shall pay, or cause to be paid, as the same shall become due and referenced therein payable, all fees and other amounts under the Financing Documents.
(collectivelyb) Parent will keep the Company reasonably informed on a timely basis of the status of the Financing and the satisfaction of the conditions thereof, including providing copies of any amendment, modification, supplement or replacement of the “Financing Commitment Documents”) Documents (provided, however, that such Financing Commitment Documents any syndication letter or fee letter may be redacted as to economic remove the fee amounts, the rates and amounts included in the “market flex” termsand other economic terms that could not adversely affect the conditionality, none enforceability, termination or aggregate principal amount of which would reduce the Financing) and shall give the Company prompt notice of any fact, change, event or circumstance that is reasonably likely to have, individually or in the aggregate, a material adverse impact on the availability of the Financing necessary for the satisfaction of all of Parent’s and its Subsidiaries’ obligations under this Agreement, including the payment of the Merger Consideration, any other amounts required to be paid pursuant to Article I and any other fees and expenses reasonably expected to be incurred in connection with this Agreement, the Merger and the other transactions contemplated hereby, including, promptly after obtaining Knowledge thereof, providing the Company written notice of any (A) material breach or default by a Financing Party or any other party of any Financing Document or any other definitive document related to the Financing, (B) actual or threatened withdrawal, repudiation or termination in writing of any of the Financing Documents by the Financing Parties or (C) material dispute or disagreement between or among any parties to the Financing Documents or any other definitive document related to the Financing, on the one hand, and Parent or Borrower, on the other hand, in each case with respect to the obligations to fund the Financing or the amount of the Financing to be funded at Closing; provided, that neither Parent nor any of its Affiliates shall be under any obligation to disclose any information that is subject to attorney client or similar privilege to the extent such privilege is asserted in good faith or otherwise would violate or contravene any Law or any obligation of confidentiality. Parent and Borrower may amend, modify, replace, terminate, assign or agree to any waiver under the Financing Documents without the prior written approval of the Company, provided, that Parent and Borrower shall not, without the Company’s prior written consent, permit any such amendment, replacement, modification, assignment, termination or waiver to be made to, or consent to any waiver of, any provision of or remedy under the Financing Documents which would (i) reduce the aggregate cash amounts of the Financing (including by increasing the amount of fees to be paid or the original issue discount) unless the aggregate amount of the Financing following such reduction, together with cash on hand, the net proceeds of any Permanent Financing and other financial resources of Parent on the Closing Date, is sufficient to consummate the Merger and the other transactions contemplated hereby, including the payment of the Merger Consideration, any other amounts required to be paid pursuant to Article I and any other fees and expenses reasonably expected to be incurred in connection with this Agreement, the Merger and the other transactions contemplated hereby (it being understood that any such reduction in such amounts in accordance with the terms of the Financing Documents or as a result of the consummation of any Permanent Financing shall be permitted), (ii) impose new or additional conditions to the Financing or otherwise expand, amend, modify or waive any of the conditions to the funding of the Financing or (iii) otherwise expand, amend, modify or waive any provision of the Financing Documents, in a manner that in any such case would reasonably be expected to (A) materially delay or make less likely the funding of the Financing (or satisfaction of the conditions to the funding of the Financing) on the Closing Date or (B) materially adversely affect the conditionality ability of Parent or availability any of its Subsidiaries to timely consummate the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject to the terms and conditions set forth therein, to lend the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity Merger and the other transactions contemplated by this Agreement hereby; provided, that notwithstanding the foregoing, Parent and paying the related fees and expenses specified herein (such portionBorrower may modify, the “Financing”). None of supplement or amend the Financing Commitments has been amended or modified prior to the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, as of the date of this Agreement, no such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely Documents to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had that have not executed the Financing Commitments as of the date hereof), and Documents as of the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect.
(b) Except for fee letters (complete copies of which have been provided to SellerAgreement; provided, howeverfurther, that any such fee letter may redacted as to economic and “flex” terms, none of additional lenders which would reduce the amount assume commitments in respect of the Financing to Documents shall be funded bona fide lenders of substantially the same, or better, credit quality (as determined by Parent in good faith) as the Financing Parties on the Closing Date date hereof. In the event that new credit agreements, syndication letters and/or fee letters are entered into in accordance with any amendment, replacement, supplement or adversely affect the conditionality or availability other modification of the Financing Documents permitted pursuant to this Section 5.15, such new credit agreements, syndication letters and/or fee letters shall be deemed to be “Financing Documents” for all purposes of this Agreement and references to “Financing” herein shall include and mean the financing contemplated thereby by the Financing Documents as so amended, replaced, supplemented or otherwise modified, as applicable. Parent shall promptly deliver to the Company copies of any termination, amendment, modification, waiver or replacement of the Financing Documents. If funds with respect to all or any portion of the Financing become unavailable (other than in accordance with the terms of the Financing Documents or as a result of the receipt of net proceeds of any Permanent Financing), Parent shall, and shall cause its Subsidiaries to, as promptly as practicable following the occurrence of such event (x) notify the Company in writing thereof and (y) use reasonable best efforts to obtain substitute financing, including, as applicable, a commitment to provide such substitute financing (on terms and conditions that are not materially less favorable to Parent and/or Borrower, taken as a whole, than the terms and conditions as set forth in the applicable Financing Documents) sufficient, together with cash on hand, the net proceeds of any Permanent Financing and other financial resources of Parent on the Closing Date), as of to enable Parent and its Subsidiaries to consummate the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect Merger and the availability of or modify, amend or expand the conditions to the funding of the Financing or the other transactions contemplated hereby (including the payment of the Merger Consideration, any other than as expressly set forth amounts required to be paid pursuant to Article I and any other fees and expenses reasonably expected to be incurred in connection with this Agreement, the Merger and the other transactions contemplated hereby) in accordance with the terms hereof (the “Substitute Financing”) and, promptly after execution thereof, deliver to the Company correct and complete copies of the new financing documents, including any new credit agreement or commitment letter and any related syndication letters and/or fee letters (in redacted form removing the fee amounts, the rates and amounts included in the “market flex” and other economic terms that could not adversely affect the conditionality, enforceability, termination or aggregate principal amount of the Financing) with respect to such Substitute Financing. Upon obtaining any such Substitute Financing Commitments delivered (or commitment therefor), such financing shall be deemed to Seller prior be a part of the “Financing” and each credit agreement or commitment letter and any related syndication letters and/or fee letters for such Substitute Financing shall be deemed to be a “Financing Document”, in each case, for all purposes of this Agreement.
(c) The Company shall, and shall cause the date hereof. Purchaser Company Subsidiaries to and SigmaTEK have fully paid shall use its reasonable best efforts to cause its and their respective Representatives to, on a timely basis, upon the reasonable request of Parent or any and all commitment fees or other fees of its Subsidiaries, provide cooperation in connection with the Financing Commitments that are payable on or prior any other debt, equity, equity-linked or other financing (including any Permanent Financing) of Parent or any of its Subsidiaries in connection with the Merger and the other transactions contemplated hereby, including the following:
(i) furnishing, or causing to be furnished, to Parent, any of the Subsidiaries of Parent and the Financing Parties and their respective agents financial information with respect to the date hereof. As Company and the Company Subsidiaries as may be reasonably requested by Parent, any of the date hereof, Parent’s Subsidiaries or the Financing Commitments are Parties in full force connection with an offer or sale of securities in connection with such financing (other than any pro forma financial statements, which shall be the responsibility of Parent);
(ii) using reasonable best efforts to cause the Company’s and effect the Company Subsidiaries’ independent accountants to participate in a manner consistent with respect totheir customary practice in drafting sessions and accounting due diligence sessions in connection with such financing;
(iii) using reasonable best efforts to assist Parent or any of its Subsidiaries in (including by providing information relating to the Company and the Company Subsidiaries required in connection with) its preparation of rating agency presentations, road show materials, bank information memoranda, projections, prospectuses, bank syndication materials, credit agreements, offering memoranda, private placement memoranda, definitive financing documents (as well as customary certificates) and similar or related documents to be prepared by Parent or any of its Subsidiaries in connection with such financings;
(iv) using reasonable best efforts to cooperate with customary marketing efforts of Parent or any of its Subsidiaries for any financing in connection with the Merger and the other transactions contemplated hereby, including using reasonable best efforts to cause its management team, with appropriate seniority and expertise, to assist in preparation for and to participate in a reasonable number of meetings, presentations, road shows, due diligence sessions (including accounting due diligence sessions), drafting sessions, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (exceptsessions with rating agencies, in each case, upon reasonable notice and at mutually agreeable dates and times and using reasonable efforts to ensure that any syndication effort benefits from any existing lending and investment banking relationships;
(v) delivering to Parent any materials and documentation about the Company and the Company Subsidiaries required under applicable “know your customer” and anti-money laundering Laws (including the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, the UK Money Laundering Regulations 2019) and any European Union legislation on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing (including Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015), as adopted and implemented from time to time at a national level by the country of incorporation or organization of the Company or any Company Subsidiary, to the extent reasonably requested by any Financing Party or Parent or any of Parent’s Subsidiaries not less than five (5) Business Days prior to Closing;
(vi) cooperating with respect to the provision of guarantees, including by providing for the executing and delivering of definitive documents related thereto at the Closing in connection with such financing;
(vii) providing customary authorization letters to the Financing Parties, authorizing the distribution of information to prospective lenders or investors and containing a customary representation that the public side versions of such documents, if any, do not include material non-public information about the Company or the Company Subsidiaries (only to the extent such authorization letters contain customary disclaimers for the Company, its Affiliates and their respective Representatives with respect to responsibility for the use or misuse of the contents thereof); and
(viii) providing reasonable assistance in the preparation of pro forma information, risk factor disclosure and other disclosures required to consummate such financing.
(d) All non-public information regarding the Company or the Company Subsidiaries obtained by Parent or its Representatives, in each case pursuant to Section 5.15(c) or Section 5.9, shall be kept confidential in accordance with the Confidentiality Agreement; provided that such information may be disclosed (i) to prospective lenders, underwriters, initial purchasers, placement agents, dealer managers, solicitation agents, information agents and depositary or other agents during syndication and marketing of the financing that enter into confidentiality arrangements customary for financing transactions of the same type as such enforceability may financing (including customary “click-through” confidentiality undertakings) and (ii) on a confidential basis to rating agencies. The Company hereby consents to the reasonable use of the Company’s and the Company Subsidiaries’ trademarks, service marks and logos solely in connection with the financing for the Merger; provided that such trademarks, service marks and logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or its Affiliates or the reputation or goodwill of the Company or the Company Subsidiaries.
(e) In connection with Section 5.15(c) and Section 5.9, (w) neither the Company nor any of the Company Subsidiaries shall be limited by applicable bankruptcy, insolvency, reorganization, moratorium required to pay any commitment or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered fee or incur any liability or expenses in a proceeding connection with any financing to be obtained by Parent or its Subsidiaries in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, connection with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated hereby., except such expenses for which Parent or one of its Subsidiaries is obligated to reimburse the Company or, if reasonably requested by the Company, for which funds that are actually necessary to pay such expenses are provided in advance by Parent or one of its Subsidiaries to the Company, (x) neither the Company or any Company Subsidiary nor any director or officer of the Company or any of th
Appears in 1 contract
Sources: Merger Agreement (Luminex Corp)
Financing. (a) As Parent has provided the Company with accurate and complete copies of the date hereof, Purchaser has delivered to Seller true and correct copies of (i) the executed financing commitment letter, dated as of the date hereofhereof (such letters, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) together with all annexes and the Financing Sources thereto (including all exhibits, schedules, and annexes exhibits attached thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) Letter”)and related fee letter (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Datewith customary redactions), as may be amended or modified in accordance with effect as of the terms execution and delivery hereof, collectively, from the “Financing Commitments”), Entities party thereto pursuant to which the such Financing Sources party thereto Entities have committedagreed, subject to the terms and conditions set forth therein, to lend provide financing for the amounts set forth therein, a portion of which shall be used therein for the purposes of funding the purchase Merger Amount. As of the Purchased Equity execution and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portiondelivery hereof, the “Financing”). None of the Financing Commitments Commitment Letter has not been amended or modified prior to the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, as of the date of this Agreement, no such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereofmodified. As of the date hereof, none of Parent or Merger Sub has entered into any Contract, side letter or other arrangement relating to the Commitment Letter that could affect the availability, conditionality, enforceability or amount of the Financing Commitments are contemplated by the Commitment Letter. As of the execution and delivery hereof, the Commitment Letter (a) is in full force and effect with respect to, and are (b) constitutes the legal, valid, binding and enforceable obligations ofobligation of Parent, Purchaser and SigmaTEK and, to the knowledge Knowledge of PurchaserParent, each of the other parties thereto (exceptthereto, in each case, except as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, or moratorium or Laws, other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless affecting the availability of whether such enforceability is considered in a proceeding in Law or equity))specific performance and other equitable remedies. As of the date execution and delivery hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, (i) no event has occurred which, with notice or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK or Purchaser Parent, Merger Sub or, to the Knowledge of Parent, the other parties thereto under the Financing Commitment Documents that would impair Letter, (ii) to the availability Knowledge of Parent, the respective commitments contained therein have not been withdrawn or rescinded in any respect and (iii) there are no conditions precedent or other contingencies relating to the funding of the Financing covered thereby contemplated to be funded on the Closing Date, (ii) constitute a failure except the Financing Conditions. Neither Parent nor Merger Sub has any reason to believe, as of the date hereof, that it will be unable to satisfy on a condition precedent to the availability timely basis any term of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfiedCommitment Letter. As of the date hereof, assuming all fees required to be paid under the Commitment Letter prior to the date hereof have been paid in full. Assuming the satisfaction of the conditions set forth in Section 6.1, accuracy of the representations and warranties of Parent, Merger Sub and the Company set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the this Agreement and performance by Seller the Company of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1hereunder, 8.2 and 8.3, SigmaTEK and Purchaser have Parent has no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied or that the full amount of the Financing contemplated by the Commitment Letter to be funded on the Closing Date will not be made available to Parent on the Closing Date. Purchaser affirms Parent and Merger Sub understand and acknowledge that it under the terms of this Agreement, Parent’s and Merger Sub’s obligation to consummate the transactions contemplated by this Agreement is not a condition in any way contingent upon or otherwise subject to Parent’s and Merger Sub’s consummation of any financing arrangements, Parent’s and Merger Sub’s obtaining any financing or the availability, grant, provision or extension of any financing to Parent and Merger Sub. As of the date hereof, Parent expects that (assuming the accuracy of the representations and warranties of Parent, Merger Sub and the Company set forth in this Agreement and performance by the Company of its obligations hereunder), when funded in accordance with, and subject to, the terms and conditions of the Commitment Letter, and together with other funds available to Parent and Merger Sub at the Closing, the Financing contemplated by the Commitment Letter will provide Parent and Merger Sub with funds on the Closing or any of its other obligations under Date sufficient to pay the Merger Amount on the terms contemplated by this Agreement that Purchaser obtains and all expenses of Parent and Merger Sub incurred in connection with the Financing or any other financing for or related to any consummation of the transactions contemplated hereby.
Appears in 1 contract
Financing. (a) As of the date hereof, Purchaser has delivered to Seller true and correct copies of (i) the executed commitment letter, dated as of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) and the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance Concurrently with the terms hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject to the terms and conditions set forth therein, to lend the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portion, the “Financing”). None of the Financing Commitments has been amended or modified prior to the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, as of the date execution of this Agreement, no such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments ▇▇▇▇▇ has delivered to the draft credit agreement contemplated thereby, Company a true and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as correct copy of the date hereof), and as of the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereofexecuted Debt Commitment Letter. As of the date hereof, the Financing Commitments are Debt Commitment Letter constitutes the legal, valid and binding obligation of Buyer and, to the Knowledge of Buyer, the other parties thereto, enforceable in accordance with its respective terms, subject to the Enforceability Exceptions. As of the date hereof, ▇▇▇▇▇ has provided the Company with a complete copy of the Fee Letter, which is the only fee letter relating to the Debt Commitment Letter. As of the date hereof, (i) the Debt Commitment Letter is in full force and effect with respect toeffect, and has not been withdrawn, rescinded or terminated or otherwise amended, supplemented or modified in any respect and no waiver has been granted thereunder, (ii) no such amendment, supplement, modification or waiver is contemplated except as expressly set forth in paragraph 4 of Annex A, and (iii) to the Knowledge of Buyer, no withdrawal, recission or termination thereof is contemplated. The obligations to fund the full amount of the commitments under the Debt Commitment Letter are not subject to any conditions or contingencies other than as specifically set forth in Section 3 of the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 7.1 and Section 7.2, there is no fact or event existing as of the date of this Agreement that (i) would constitute a breach or default by Buyer under the terms and conditions of the Debt Commitment Letter, (ii) precludes or is reasonably likely to preclude the satisfaction of the conditions set forth in the Debt Commitment Letter or (iii) would otherwise result in the Debt Financing not being available on the Closing Date. Assuming the accuracy of the Company’s representations and warranties set forth in this Agreement to the extent required by Section 7.2 and performance by the Company in all material respects of its obligations hereunder, ▇▇▇▇▇ has no reason to believe that it will be unable to satisfy (or obtain a waiver of) the conditions contained in the Debt Commitment Letter on the Closing Date or that the Debt Financing will not be made available at the time of Closing. All commitment and other fees required to be paid under the Debt Commitment Letter and the Fee Letter on or prior to the date hereof have been paid. The only conditions precedent relating to the funding of the Debt Financing on the Closing Date are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each conditions contained in Section 3 of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity))Debt Commitment Letter. As of the date hereof, there are no conditions precedent other agreements, side letters or other contingencies related arrangements relating to the funding Debt Financing (other than the Debt Commitment Letter) that would impose conditions on the availability of the Debt Financing or that would otherwise reasonably be expected to cause the full amount of the Debt Financing contemplated to be funded at Closing to be unavailable at the time of Closing. (b) Concurrently with the execution of this Agreement, ▇▇▇▇▇ has delivered to the Company true and correct copies of the agreed forms of Series D Documents, providing the terms and conditions upon which the Series D Investors will purchase shares of Series D preferred stock of Buyer for cash (the “Series D Financing” and, together with the Debt Financing, the “Financing”). The obligations to fund the full amount of the Series D Financing are not subject to any conditions or contingencies other than as expressly set forth in the Financing Commitment Series D Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated hereby.the
Appears in 1 contract
Financing. (a) As of the date hereof, Purchaser has delivered to Seller true and correct copies of Parent Financing Covenants
(i) Parent will use its, and will cause its Subsidiaries to use their respective, reasonable best efforts to take, or cause to be taken, and to cause the executed commitment letterappropriate Representatives of Parent and/or its Subsidiaries to take, dated all actions and do, or cause to be done, all things necessary, proper or advisable to arrange and consummate the Debt Financing at or prior to the Closing on the terms and subject only to the conditions set forth in the Debt Financing Letters (as amended, restated, replaced or waived in accordance with Section 7.17(a)(ii)) (including any “flex” provisions contained therein) in the amounts necessary to fund the Debt Financing Uses on the Closing Date (when taken together with funds otherwise available to Parent as of the date hereofClosing Date), among Purchaserincluding using reasonable best efforts to (1) comply with and maintain the Debt Commitment Letter in full force and effect in accordance with the terms and subject only to the conditions thereof (subject to Parent’s right to withdraw, SigmaTEK Systemsrescind, LLC terminate, replace, amend, restate or waive the Debt Financing Letters in accordance with Section 7.17(a)(ii) below), (2) negotiate and enter into definitive financing agreements with respect thereto on the terms and subject only to the conditions set forth in the Debt Commitment Letter, (3) comply with and perform the obligations applicable to it pursuant to the Debt Commitment Letter, including, to the extent the same are exercised, any “SigmaTEKflex” provisions in the Fee Letters, (4) draw down on and consummate the Debt Financing at or prior to the Closing, if all conditions to the Debt Financing are satisfied, including by enforcing their respective rights under the Debt Commitment Letter and causing the Debt Financing Sources to fund the Debt Financing at the Closing, if all conditions to the Debt Financing are satisfied, in the amounts necessary to fund the Debt Financing Uses on the Closing Date (when taken together with funds otherwise available to Parent or Merger Sub as of the Closing Date) and (5) satisfy on a timely basis all conditions (including taking all actions directly or indirectly to not cause a “Change of Control” as defined in the Debt Commitment Letter from occurring) in such definitive agreements to the extent within Parent’s, any of its Affiliates’ or any of its or its Affiliates’ Representatives’ control and assist in the satisfaction of all other conditions. If all or any portion of the Debt Financing expires or terminates or otherwise becomes (or could reasonably be expected to become) unavailable in the manner contemplated by the Debt Commitment Letter, Parent will immediately (and in any event, within two Business Days) notify the Company in writing thereof and use its reasonable best efforts to arrange for and obtain as promptly as practicable following the occurrence of any such event alternative debt financing (the “Alternate Debt Financing”) in an amount sufficient to consummate the transactions contemplated by this Agreement (after taking into account any funds otherwise available to Parent) and perform all of its obligations hereunder on terms and conditions that are not less favorable or more onerous (including imposition of new conditions or expansion of existing conditions), in the aggregate, than those set forth in the Debt Commitment Letter and that would not, and could not reasonably be expected to, prevent, delay or impair the ability of Parent to obtain the Debt Financing Sources thereto (or consummate the transactions contemplated by this Agreement. In the event Parent obtains any Alternate Debt Financing, Parent will promptly deliver a true, correct and complete executed debt commitment letter to the Company with respect to such Alternate Debt Financing, including all exhibits, schedules, term sheets, amendments, supplements, modifications and annexes theretothereto and true, correct and the complete copies of any related executed fee letter associated therewith letters, engagement letters and referenced therein (collectivelyother agreements, the “Financing Commitment Documents”) (provided, however, it being understood and agreed that any such Financing Commitment Documents fee letters may be redacted solely in the same manner as the Fee Letters. Parent will be subject to economic and “flex” termsthe same obligations with respect to any Alternate Debt Financing as set forth in this Agreement with respect to the Debt Financing.
(ii) Parent will not withdraw, none rescind, terminate, replace, amend, restate or waive any Debt Financing Letter or any provision thereof without the Company’s prior written consent if (in the case of which would reduce any such replacement, amendment or waiver) such replacement, restatement, amendment or waiver would, or could reasonably be expected to, (1) delay, impede, impair or prevent the amount Closing, (2) make the receipt or funding of the Debt Financing (or satisfaction of the conditions to be funded obtaining the Debt Financing) in the amounts necessary to fund the Debt Financing Uses on the Closing Date or adversely affect the conditionality or availability (when taken together with funds otherwise available to Parent as of the Financing contemplated thereby on the Closing Date)) less likely to occur, as may be amended (3) adversely impact the ability of Parent to enforce its rights against the other parties to the Debt Financing Letters or modified in accordance the definitive agreements with the terms hereof, collectivelyrespect thereto, the “Financing Commitments”), pursuant ability of Parent to which consummate the Financing Sources party thereto have committed, subject to the terms and conditions set forth therein, to lend the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying at the related fees and expenses specified herein (such portion, Closing or the “Financing”). None likelihood of the Financing Commitments has been amended or modified prior to the date of transactions contemplated by this Agreement in any manner that would adversely impact to be consummated at the availability ofClosing, (4) reduce (or add additional conditions precedent to have the availability effect of reducing) the aggregate amount of the Financing, and, as of the date of this Agreement, no such amendment or modification is contemplated Debt Financing (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce including by changing the amount of the Financing fees to be funded paid or original issue discount of the Debt Financing) below the amount necessary to fund the Debt Financing Uses on the Closing Date (when taken together with funds otherwise available to Parent or adversely affect the conditionality or availability Merger Sub as of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters ) or contracts to which Purchaser (5) impose new or SigmaTEK is a party that impose conditions, affect the availability of additional conditions or modifyadversely expand, amend or expand modify any of the existing conditions to the receipt of the Debt Financing, or otherwise expand, amend or modify any existing condition or other provision of the Debt Financing Letters, in each case in a manner that could reasonably be expected to delay, impede, impair or prevent the funding of the Debt Financing (or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereof, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Debt Financing) at the Closing. Parent will promptly deliver a copy of any amendment, supplement, modification or replacement of any Debt Financing Letter to the Company. Upon any permitted amendment, supplement, modification or replacement of any Debt Financing Letter (including with respect to any Alternate Debt Financing) in accordance with this Section 7.17, the term “Debt Financing Letters” will mean the Debt Financing Letters as so amended, supplemented, modified or replaced, and references to “Debt Financing” and/or “Alternate Debt Financing” will include the financing contemplated by the Debt Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing Letters as so amended, supplemented, modified or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated herebyreplaced.
Appears in 1 contract
Sources: Merger Agreement (Organon & Co.)
Financing. (a) As of the date hereof, Purchaser Section 5.6.1 Parent has delivered to Seller true the Company true, complete and correct copies signed counterpart(s) of (i) the executed equity commitment letterletter from the Fund to provide equity financing in an aggregate amount set forth therein (the “Equity Commitment Letter”) and (ii) the debt commitment letter(s), dated as of the date hereof, by and among PurchaserCredit Suisse Securities (USA) LLC, SigmaTEK SystemsCredit Suisse, LLC (“SigmaTEK”) Cayman Islands Branch and the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”)Merger Sub, pursuant to which the Financing Sources lenders party thereto have committedagreed, subject to the terms and conditions set forth therein, to lend provide or cause to be provided, debt financing in connection with the amounts set forth thereintransactions provided for herein to Parent (the “Debt Commitment Letters” and, a portion of which shall be used for together with the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portionCommitment Letter, the “FinancingCommitments”). None As of the Financing date hereof, the Commitments has (i) have not been amended or modified prior to the date of this Agreement in any manner that would adversely impact the availability of, (nor is any modification or add additional conditions precedent to the availability of the Financing, and, as of the date of this Agreement, no such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereofcontemplated), and as of the date of this Agreement the commitments contained in the Financing Commitments (ii) have not been withdrawn or rescinded in any respect.
respect (bnor has the Parent or Merger Sub received any notice that they will be withdrawn or rescinded), (iii) Except for fee letters are (complete copies solely to the Knowledge of which have been provided to Seller; providedParent and Merger Sub, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce in the amount case of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereof, the Financing Commitments are Debt Commitment Letters) in full force and effect with respect toeffect, and (iv) are the legal, valid, valid and binding obligations of Parent and enforceable obligations of, Purchaser and SigmaTEK Merger Sub and, to the knowledge of PurchaserParent and Merger Sub, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium thereto. The Commitments are subject to no contingencies or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly those set forth in the Financing Commitment Documents delivered to Seller prior to the date hereofCommitments. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK Parent or Purchaser Merger Sub under the Financing Commitment Documents that would impair the availability any term or condition of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfiedCommitments. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have Parent has no reason to believe that it will be unable to satisfy on a timely basis any term or condition of Closing that is required to be satisfied by it as a condition of the conditions to Commitments or that the Financing financing contemplated by the Financing Commitments applicable to it will not be satisfied made available to Parent on the Closing Date. Purchaser affirms that it is not a condition Parent has fully paid any and all commitment fees and other fees required by the Commitments to be paid as of the date hereof. Subject to the Closing or any terms and conditions of its other obligations under the Commitments and this Agreement that Purchaser obtains Agreement, the Financing or aggregate proceeds contemplated by the Commitments, when funded in accordance with their terms, together with the available cash of the Company, will in the aggregate be sufficient to (i) consummate the Merger upon the terms contemplated by this Agreement, (ii) effect any other financing for repayment or refinancing of debt contemplated in connection with the Merger or the Commitments, and (iii) pay all related to any of the transactions contemplated herebyfees and expenses.
Appears in 1 contract
Sources: Merger Agreement
Financing. (ai) As of the date hereof, Purchaser Parent has delivered to Seller true the Company correct and correct complete copies of (iA) the executed commitment letterletters from PNC Bank, dated as of the date hereof, among Purchaser, SigmaTEK Systems, LLC National Association and GSO Capital Partners LP (“SigmaTEK”) and the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Debt Financing Commitments”), pursuant to which the Financing Sources party parties thereto have committed, subject to the terms and conditions set forth therein, to lend provide the amounts debt financing set forth therein, a portion of which shall be used for therein in connection with the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement (the “Debt Financing”), and paying (B) the related fees executed Equity Financing Commitment (together with the Debt Financing Commitment, the “Financing Commitments”), pursuant to which the Guarantors have committed, subject to the terms and expenses specified herein conditions set forth therein, to provide the Equity Financing set forth therein in connection with the transactions contemplated by this Agreement (such portiontogether with the Debt Financing, the “Financing”). None of The Equity Financing Commitment provides that the Financing Commitments has been amended or modified prior Company is an intended third party beneficiary thereof, subject to the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, as of the date of this Agreement, no such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respectits terms.
(bii) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereof, the Financing Commitments are in full force and effect with respect to, and are the legal, validvalid and binding obligations of Parent, binding Merger Sub, or the Affiliates of Parent or Merger Sub party thereto, on the one hand, and each of the other parties thereto, on the other hand, enforceable obligations ofagainst Parent, Purchaser and SigmaTEK Merger Sub, or the Affiliates of Parent or Merger Sub party thereto, on the one hand, and, to the knowledge Knowledge of PurchaserParent, each of the other parties thereto (exceptthereto, on the other hand, in each caseaccordance with their respective terms, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting subject to the enforcement of creditors’ rights generally, Bankruptcy and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity))Equity Exception. As of the date hereof, there none of the respective commitments contained in the Financing Commitments have been terminated, withdrawn, rescinded, modified or amended in any respect. Parent and Merger Sub, as applicable, have fully paid, or caused to be fully paid, any and all commitment or other fees which are due and payable on or prior to the date hereof pursuant to the terms of the Financing Commitments. As of the date hereof, no event has occurred that, with or without notice or lapse of time or both, would constitute a breach or default by Parent, Merger Sub, or the Affiliates of Parent or Merger Sub party thereto or, to the Knowledge of Parent, any other parties to the Financing Commitments under the Financing Commitments. There are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing expressly contemplated by the Financing Commitments applicable to it will not be satisfied on and the Closing Date. Purchaser affirms that it is not a condition customary related fee letters (copies of which have been provided to the Closing Company with only the fee amount redacted). Except for such fee letters with respect to the Debt Financing, there are no side letters or any other agreements, contracts or arrangements related to the funding or investing, as applicable, of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any than as expressly set forth in the Financing Commitments. Assuming the satisfaction of the transactions conditions to Parent’s and Merger Sub’s obligations to consummate the Merger, the amount of funds to be provided pursuant to the Debt Financing, if funded in accordance with the terms of the Debt Financing Commitments, together with the Equity Financing, if funded in accordance with the terms of the Equity Financing Commitment, will be sufficient at the Effective Time, to (A) pay the aggregate Per Share Merger Consideration, (B) pay the aggregate Option Consideration, (C) pay the aggregate Restricted Stock Consideration, and (D) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated herebyhereunder.
Appears in 1 contract
Financing. (a) As of Prior to the date hereofClosing, Purchaser has delivered Parent and Merger Sub shall use their reasonable best efforts to Seller true and correct copies of (i) obtain the executed commitment letterFinancing, dated as of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) and the Financing Sources including entering into definitive agreements with respect thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject to the terms and conditions set forth therein, in the Financing Commitments or such other terms as may be acceptable to lend Parent in its sole discretion (provided that the amounts same or more favorable terms than those set forth therein, a portion of which in the Financing Commitments shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portion, the “Financing”deemed acceptable to Parent). None In the event that any portion of the Financing becomes unavailable so as not to enable Parent and Merger Sub to proceed with the Transactions in a timely manner, Parent and Merger Sub shall use their reasonable best efforts to arrange to obtain alternate financing from alternative sources on terms and conditions acceptable to Parent in its sole discretion (provided that the same or more favorable terms than those set forth in the Financing Commitments has been amended shall be deemed acceptable to Parent) as promptly as practicable following the occurrence of such event, including entering into definitive agreements with respect thereto (such definitive agreements entered into pursuant to the first or modified prior second sentence of this Section 6.9(a) being referred to as the “Definitive Financing Agreements”); provided that nothing in this Section 6.9(a) shall be deemed to require Ba▇▇ ▇o provide a greater amount of equity financing than is contemplated by the Equity Commitment. Parent and Merger Sub shall, shall cause their Affiliates to, and shall use their reasonable best efforts to cause their Representatives to, comply with the terms and satisfy on a timely basis the conditions of the Financing Commitments, the Definitive Financing Agreements, any alternate financing commitment and any related fee and engagement letters. Parent shall (i) furnish complete, correct and executed copies of the Definitive Financing Agreements to the Company promptly upon their execution, (ii) give the Company prompt notice of any breach by any party of any of the Financing Commitments, any alternate financing commitment or the Definitive Financing Agreements of which Parent or Merger Sub becomes aware or any termination thereof and (iii) otherwise at the reasonable request of the Company inform the Company of the status of its efforts to arrange the Financing (or any replacements thereof).
(b) From and after the date of this Agreement in any manner that would adversely impact until the availability of, or add additional conditions precedent to the availability earlier of the Financing, and, as of Effective Time or the date of this Agreement, no such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date termination of this Agreement in accordance with Section 8.1, the commitments contained Company shall, and shall cause the Company Subsidiaries to, at Parent's sole expense (except as provided in the fourth sentence of this Section 6.9(b)), reasonably cooperate with Parent and Parent’s Affiliates in connection with the arrangement of the Financing Commitments have not been withdrawn (or rescinded any replacements thereof), including (i) participation in due diligence sessions, meetings, drafting sessions, management presentation sessions, “road shows”, and sessions with rating agencies by Company officers and employees, (ii) assisting Parent in obtaining any title insurance lien waivers, estoppels, affidavits, non-disturbance agreements, memoranda of leases, legal opinions, surveys or other documents or deliveries, (iii) using reasonable best efforts to prepare business projections, financial statements, pro forma statements and other financial data of the type required by Regulation S-X and Regulation S-K under the Securities Act of the type and form consistently included in offering memoranda, private placement memoranda, prospectuses and similar documents, all as may be reasonably requested by Parent, (iv) the execution and delivery of underwriting or placement agreements, loan agreements, note purchase agreements, registration rights agreements, indentures and related documents, including a certificate of the chief accounting officer of the Company with respect to solvency matters, and using reasonable best efforts to obtain accountants' comfort letters and consents of accountants for use of their reports in any respect.
materials relating to the Debt Commitment, all as may be reasonably requested by Parent, (bv) Except reasonably facilitating the pledging of collateral and (vi) providing the financial information necessary for fee letters (complete copies the satisfaction of the obligations and conditions set forth in the Debt Commitments within the time periods required thereby in order to permit a Closing Date on or prior to the date set forth in Section 8.1(b)(2), which have been provided obligation shall include, in all events, providing the financial information required pursuant to Sellerthe terms of the Debt Commitments; provided, however, that (x) such requested cooperation shall not unreasonably interfere with the ongoing operations of the Company and the Company Subsidiaries and (y) neither the Company nor any such fee letter may redacted as Company Subsidiary shall be required to economic make any payment or expenditure in connection with the financing cooperation described in this Section 6.9(b) in excess of $250,000 in the aggregate (the “Financing Cooperation Expense Cap”). The parties agree that the effectiveness of any documents referred to in the preceding sentence shall be subject to the consummation of the Closing. Without limiting the foregoing provisions of this Section 6.9(b), (i) the Company shall, and “flex” termsshall cause each of the Company Subsidiaries to, none reasonably cooperate with Parent's financing sources and their representatives in connection with the completion of an inventory appraisal and a field examination customary for inventory and receivables financings (each of which would reduce the amount of the Financing to shall be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), conducted during normal business hours (so long as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions not disruptive to the funding of Company's operations) and after reasonable prior notice, and (ii) (x) the Financing or Company and its counsel shall be given reasonable opportunity to review and comment upon any offering memorandum that includes information about the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees Company prepared in connection with the Financing Commitments (and the Parent shall not disseminate any offering memorandum relating to any offering of the Company’s or any Company Subsidiary’s securities under Rule 144A of the Securities Act without the prior consent of the Company, which consent shall not be unreasonably withheld), and (y) Parent and Merger Sub and their counsel shall be given reasonable opportunity to review and comment upon any offering memorandum prepared in connection with any financing undertaken by the Company to finance the Dividend. In the event that are payable on this Agreement is terminated by the Company pursuant to Section 8.1(c)(ii) or Parent terminates this Agreement pursuant to Section 8.1(b)(ii), Parent shall, promptly upon request by the Company, reimburse the Company for all reasonable out-of-pocket costs incurred by the Company or the Company Subsidiaries in connection with such financing cooperation, including all amounts up to and including the Financing Cooperation Expense Cap, and provided further, that if this Agreement is terminated for any reason, Parent shall use its best efforts to cause the voiding, termination and/or destruction of all documents executed by the Company in connection with such financing cooperation, and shall reimburse the Company for all costs and expenses incurred by the Company in connection therewith. Notwithstanding anything in this Agreement to the contrary, neither the Company nor any of the Company Subsidiaries shall be required to pay any commitment or other similar fee or incur any other Liability in connection with the Financing (or any replacements thereof) prior to the date hereof. As of the date hereof, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto Effective Time (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than except as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, above with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions respect to the Financing are satisfied and each condition set forth in Section 8.2 is satisfiedCooperation Expense Cap). As of Furthermore, notwithstanding the date hereofforegoing, assuming neither the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that Company or any of the conditions Company Subsidiaries, nor any of their respective officers or directors shall be required to execute any certificate, representation letter or other certification, or to deliver, or cause to be delivered, any legal opinion to the Financing contemplated by extent the Financing Commitments applicable to it will not be satisfied on Company determines in good faith that, under the Closing Date. Purchaser affirms that it circumstances, the execution of such certificate, letter or other certification, or delivery of such opinion is not a condition to the Closing customary or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated herebywould be unreasonable.
Appears in 1 contract
Sources: Merger Agreement (Burlington Coat Factory Warehouse Corp)
Financing. The Buyer undertakes to the Seller that:
(a) As the Buyer shall take, or cause to be taken, all actions and do, or cause to be done, all things necessary or advisable to arrange the Debt Financing as promptly as practicable following the date of this deed and to consummate the Debt Financing on the Completion Date, including (in each case at its own cost, and indemnifying and holding harmless the Seller from any costs incurred by the Seller in respect of any of the date hereof, Purchaser has delivered to Seller true and correct copies of following):
(i) maintaining in effect the executed commitment letter, dated as Commitment Letters;
(ii) participation by senior management of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) and the Financing Sources thereto (including all exhibits, schedulesBuyer in, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectivelyassistance with, the “preparation of rating agency presentations and meetings with rating agencies;
(iii) causing the Debt Financing to be consummated upon satisfaction of the Debt Financing Conditions;
(iv) satisfying on a timely basis all Debt Financing Conditions;
(v) negotiating, executing and delivering the definitive agreements that reflect the terms contained in the Commitment Letters or on such other terms acceptable to the Buyer and its financing sources (Debt Financing Documents”);
(vi) (providedin the event that the Debt Financing Conditions have been satisfied, howeveror upon funding would be satisfied, that such Financing Commitment Documents may be redacted as cause the financing providers to economic and “flex” terms, none of which would reduce fund the full amount of the Debt Financing; and
(vii) enforcing its rights under the Commitment Letters in the event of a Financing Failure Event (including by seeking damages or taking other enforcement actions, including seeking an order of specific performance), and assisting in the Seller enforcing such rights directly if the Seller so elects; Share sale deed 89
(b) neither the Buyer nor any of its Affiliates shall amend, modify, supplement, restate, assign, substitute or replace any of the Commitment Letters or any Debt Financing Document except for substitutions and replacements as a result of any alternative financing to be funded on obtained pursuant to clause 33.1(c);
(c) without limiting the Closing Date Buyer’s other obligations under this clause 33, or adversely affect the conditionality or availability Seller’s other rights, if a Financing Failure Event occurs, the Buyer shall:
(i) immediately notify the Seller of such Financing Failure Event and the Financing contemplated thereby on the Closing Date), as may be amended or modified reasons therefore;
(ii) in accordance consultation with the terms hereofSeller, collectively, obtain alternative financing from alternative financing sources in an amount sufficient to make the “Financing Commitments”), pursuant to which payments required under this deed (including the Financing Sources party thereto have committed, subject to Completion Payment) and consummate the terms and conditions set forth therein, to lend the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying deed (Alternative Financing), as promptly as practicable following the related fees and expenses specified herein (such portion, the “Financing”). None occurrence of the Financing Commitments has been amended or modified prior Failure Event;
(iii) obtain, and when obtained, provide the Seller with a copy of, a new financing commitment and/or the definitive agreements that reflect such new financing commitment (Alternative Financing Documents), subject only to conditions precedent (Alternative Financing Conditions) substantially the same as the Debt Financing Conditions; and
(iv) be deemed to warrant to the date Seller as at Completion by reference to the facts and circumstances then existing all the statements set out in paragraph 1.4 of this Agreement in Schedule 8 mutatis mutandis, it being specified that any manner that would adversely impact reference to the availability of“Debt Financing” will be deemed to be a reference to the “Alternative Financing”, any reference to “Commitment Letters” shall be deemed to be a reference to the “Alternative Financing Documents” and any reference to “Debt Financing Conditions” shall be deemed to be a reference to the “Alternative Financing Conditions”;
(d) the Buyer shall give the Seller prompt notice of any breach, repudiation, or add additional conditions precedent threatened or anticipated breach or repudiation, by any party to the availability Commitment Letters or the Debt Financing Documents (or to the agreements in connection with the Alternative Financing to be obtained in accordance with clause 33.1(c)) of which the Buyer or its Affiliates becomes aware;
(e) the Buyer shall not consent to any assignment or rights or obligations under the Commitment Letters or any Debt Financing Document (or any agreement in connection with the Alternative Financing to be obtained in accordance with clause 33.1(c)) without the prior written approval of the FinancingSeller, such approval not to be unreasonably withheld; and, as
(f) the Buyer shall keep the Seller informed in reasonable detail of the date status of this Agreementits efforts to arrange the Debt Financing (or the Alternative Financing to be obtained in accordance with clause 33.1(c)), no such amendment or modification is contemplated (other thanprovided, for the avoidance of doubt, amendments to that in no event shall the draft credit agreement contemplated therebyreceipt by, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of any funds or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereoffinancing to, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium Buyer or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller any of its obligations under this Agreement and Affiliates (including the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not Debt Financing) be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related Buyer’s obligation to any of consummate the transactions contemplated hereby.by this deed. Share sale deed 90
Appears in 1 contract
Financing. (a) As of Purchaser shall use reasonable best efforts to obtain the date hereof, Purchaser has delivered to Seller true and correct copies of (i) the executed commitment letter, dated as of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) and the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Debt Financing contemplated thereby by the Debt Commitment Letter on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject to the terms and conditions set forth therein, to lend the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portion, the “Financing”). None of the Financing Commitments has been amended therein on or modified prior to the date of this Agreement Closing Date, including using commercially reasonable efforts to (i) maintain in effect the Debt Commitment Letter in accordance with its terms until the Closing, (ii) negotiate and enter into definitive agreements (the “Definitive Financing Agreements”) with respect to the Debt Financing on the terms and conditions contemplated by the Debt Commitment Letter, including any “market flex” provisions contained in any manner fee letters executed in connection therewith (or such other terms as are reasonably acceptable to Purchaser), (iii) satisfy (or obtain a waiver of) on a timely basis all the conditions to Purchaser obtaining the Debt Financing set forth in the Debt Commitment Letter or any Definitive Financing Agreements, in each case, that are within Purchaser’s control and to the extent such conditions are applicable to Purchaser or any of its Affiliates, (iv) comply on a timely basis with all of its covenants and other obligations set forth in the Debt Commitment Letter and the Definitive Financing Agreements to the extent that the failure to comply with such obligations would adversely impact the availability of, or add additional conditions precedent to the availability of the FinancingDebt Financing on the Closing Date, and, as and (v) upon satisfaction of the date conditions set forth in the Debt Commitment Letter and satisfaction of the conditions set forth in Section 6.01 and Section 6.02 of this Agreement, consummate the Debt Financing by the time that the Closing is required to occur in accordance with this Agreement; provided that, in no such amendment event shall the Purchaser be required to commence or modification is contemplated (bring any litigation or other than, for the avoidance action against any of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date of this Agreement the commitments contained Sources in the Financing Commitments have not been withdrawn or rescinded in any respectconnection therewith.
(b) Except for fee letters Purchaser shall give the Company notice as promptly as reasonably practicable after Purchaser becomes aware of (complete copies of which have been provided to Seller; provided, however, that i) any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded material breach or material default on the Closing Date or adversely affect the conditionality or availability part of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a any party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Debt Commitment Letter or Definitive Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid Agreement, (ii) any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereof, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred whichthat, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute or result in a material breach or material default or breach on the part of SigmaTEK any party to the Debt Commitment Letter or Purchaser under the Definitive Financing Commitment Documents that Agreement or would impair the availability of the Financing on the Closing Date, (ii) reasonably be expected to constitute or result in a failure to satisfy a condition precedent to the availability funding of the Debt Financing set forth in the Debt Commitment Letter that would materially delay or prevent the Closing, (iii) any notice or other written communication to or from any Financing Source party to the Debt Commitment Letter or Definitive Financing Agreement with respect to any actual breach, default, termination or repudiation on the part of SigmaTEK Purchaser or any other party to the Debt Commitment Letter or Definitive Financing Agreement or any failure to satisfy any condition precedent or other contingency set forth in the Debt Commitment Letter or Definitive Financing Agreement that would materially delay or prevent the Closing, and (iv) any withdrawal, termination, rescission or repudiation of the Debt Commitment Letter or Definitive Financing Agreement, or any provision thereof that would make the funding of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) less likely to occur in any material respect or materially delay the availability of the Debt Financing on the Closing Date; provided that nothing in this Section 5.09(b) shall require the Purchaser orto disclose any information that is subject to the attorney-client privilege or the disclosure of which would result in the breach of any of the Purchaser’s confidentiality obligations set forth in the Debt Commitment Letter. Upon written request from the Company, Purchaser shall provide any information reasonably requested by the Company relating to any circumstance referred to in the immediately preceding sentence.
(c) Purchaser will not permit, without the prior written consent of the Seller Representative, any material amendment, modification or supplement to be made to, or any waiver of, any provision or remedy under the Debt Letters or any Definitive Financing Agreement that (i) reduces the aggregate amount of the Financing if after giving effect to such reduction, the amount of Financing, together with cash on hand of the Purchaser, will be less than the Financing Amount, (ii) imposes new or additional conditions precedent to the initial funding of the Debt Financing in a manner that would reasonably be expected to (A) materially delay or prevent the Closing Date or (B) make the funding of any portion of the Debt Financing (or satisfaction of any condition to obtaining any portion of the Debt Financing) necessary to fund the Financing Amount less likely to occur in any material respect on the Closing Date (it being understood and agreed that, in any event, Purchaser may, without the consent of any other Person, amend the Debt Commitment Letter to add lenders, arrangers, bookrunners, agents, managers or similar entities that have not executed the Debt Commitment Letter as of the date of this Agreement and, subject to clause (i) hereof, amend the economic and other arrangements with respect to the existing and additional lenders, arrangers, bookrunners, agents, managers or similar entities), or (iii) would reasonably be expected to materially adversely impact the ability of Purchaser to enforce its rights against any of the other parties to the Debt Commitment Letter.
(d) In the event that any portion of the Debt Financing in an amount required to pay the Financing Amount becomes unavailable on the terms and conditions set forth in the Debt Commitment Letter (including any “market flex” provisions applicable thereto) prior to the Closing Date (after giving effect to any other equity and/or debt financing that may then be available to cover such unavailable amount), regardless of the reason therefor, Purchaser shall as promptly as reasonably practicable, notify the Seller Representative of such unavailability and use Purchaser’s commercially reasonable efforts to obtain, as promptly as practicable following the occurrence of such event, substitute debt financing on terms not less favorable, in the aggregate, to Purchaser (as determined in good faith by P▇▇▇▇▇▇▇▇, but in any event that does not impose any new or additional condition precedent to the receipt of any portion of the Debt Financing in a manner that would reasonably be expected to (i) materially delay or prevent the Closing Date, or (ii) make the funding of any portion of the Debt Financing in an amount required to pay the Financing Amount (or satisfaction of any condition to obtaining any portion of the Debt Financing) materially less likely to occur) than those contemplated in the Debt Letters (including any “market flex provisions” applicable thereto) as in effect on the date of this Agreement, and in an amount sufficient, when added to the portion of the Financing that is and remains available and taking into account Purchaser’s cash on hand, to fund the Financing Amount (“Substitute Financing”). In the event any Substitute Financing is obtained in accordance with this Section 5.09(d), references in this Agreement to the Debt Financing shall be deemed to refer to such Substitute Financing (in lieu of the Debt Financing to the extent replaced thereby), if one or more commitment letters or definitive financing agreements are entered into or proposed to be entered into in connection with such Substitute Financing (such commitment letters, the “Substitute Commitment Letters”, and such definitive financing agreements, the “Substitute Definitive Financing Agreements”), references in this Agreement to the Commitment Letters and the Definitive Financing Agreements shall be deemed to refer to the Substitute Commitment Letters and the Substitute Definitive Financing Agreements (in lieu of the Commitment Letters and the Definitive Financing Agreements to the extent replaced thereby), and all obligations of Purchaser pursuant to this Section 5.09(d) shall be applicable thereto to the same extent as Purchaser’s obligations with respect to the Debt Financing replaced thereby. Purchaser shall deliver to the Company complete and accurate copies of any Substitute Commitment Letters and Substitute Definitive Financing Agreements as promptly as practicable after the execution thereof.
(e) Prior to the Closing, the Parent shall, and shall cause its Subsidiaries (including the Company) and their respective officers, directors, employees, agents, attorneys, accountants, advisors and representatives to, use their reasonable best efforts to provide, such assistance and cooperation as Purchaser may reasonably request in connection with obtaining the Debt Financing on the terms and conditions described in or contemplated by the Debt Commitment Letters, including by: (i) upon reasonable prior notice, making senior management of the Parent and its Subsidiaries reasonably available during normal business hours in reasonably convenient locations (or via telephonic meeting), all to be mutually agreed, for customary syndication, presentations, marketing, lender or proposed financing source meetings, and due diligence sessions, (ii) as promptly as reasonably practicable, furnishing Purchaser, its Affiliates and the Financing Sources with the Required Information and, without duplication, other customary financial information regarding the Selling Entity and its Subsidiaries, the Company, the Contributed Assets and its industry reasonably requested by Purchaser or the Financing Sources and required in connection with the Debt Commitment Letter, including in connection with assisting with Purchaser’s preparation of pro forma unaudited financial statements to the extent required by the Debt Commitment Letter or for the preparation of any customary bank information memoranda, offering documents, lender and investor presentations, rating agency presentations, (iii) if reasonably requested in writing at least ten (10) calendar days prior to the knowledge Closing, providing at least five (5) Business Days prior to the Closing, all document and information regarding the Selling Entity and its Subsidiaries, including the Company, and the Contributed Assets, required under “know your customer” and anti-money laundering rules and regulations (including the U.S.A Patriot Act of 2001 and the Beneficial Ownership Regulation (31 C.F.R. §1010.230)), (iv) reviewing customary offering documents and related materials, including information memoranda and packages, lender and investor presentations, rating agency presentations and other similar documents and materials prepared by Purchaser or the Financing Sources and reasonably requested by Purchaser in connection with the Debt Financing, (v) cooperating with the Financing Sources’ reasonable due diligence investigation and evaluation of the business, assets and properties of the Selling Entity and its Subsidiaries, including the Company, and the Contributed Assets (including evaluating cash management and accounting systems, policies and procedures relating thereto, and conducting appraisals and field audits and providing information with respect to receivables, deposit and other accounts and related assets for the purpose of establishing collateral arrangements), (vi) reasonably assisting Purchaser with Purchaser’s preparation of disclosure schedules or schedules describing any assets of the Selling Entity and its Subsidiaries, result including the Company, and the Contributed Assets as may be required by the Debt Commitment Letter or Definitive Financing Agreements, and permitting officers of the Selling Entity and its Subsidiaries who will be officers of the Company and its Subsidiaries after giving effect to the Closing to execute and deliver any incumbency certificates or other closing documents in connection with the Debt Financing to the extent required under the Debt Commitment Letter or Definitive Financing Agreements (it being understood that such documents will not be effective until, and otherwise subject to, the Closing), (vii) executing and delivering customary authorization letters (which may include customary representations and warranties regarding accuracy and completeness of information and absence of material non-public information, provided such letters shall include customary language exculpating the Company with respect to any liability related to the use of the contents thereof or any related marketing material by the recipients thereof) for use in syndicating the Debt Financing, (viii) obtaining such insurance certificates and endorsements as reasonably requested by Purchaser and required by the Debt Commitment Letter or Definitive Financing Agreements, (ix) obtaining the releases of Encumbrances and pay-off letters in accordance with the terms hereof, (x) reasonably cooperating with Purchaser’s legal counsel in connection with any legal opinions that such legal counsel may be required to deliver in connection with the Debt Financing, (xi) assisting in the preparation of, and executing and delivering, Definitive Financing being unavailable Agreements, including credit agreements, guarantee and collateral documents and customary closing certificates as may be required in connection with the Debt Financing (including a certificate of an appropriate officer of the Company with respect to solvency of the Company and its Subsidiaries on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby) and the schedules and exhibits thereto and other customary documents, in each case as may be reasonably requested by Purchaser or the Financing Sources and that are not effective until as of, or after, the Closing, and (xii) facilitating, effective as of the Closing Date, so long as the conditions granting of a security interest (and perfection thereof) in collateral (including possessory collateral) and the termination of the existing guarantee and collateral arrangements in respect of the holders of Closing Date Debt, and (xiii) taking all corporate actions, subject to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As occurrence of the date hereofClosing, assuming reasonably requested by Purchaser to permit the accuracy consummation of the representations Debt Financing and warranties set forth to permit the proceeds thereof to be made available to Purchaser at Closing; provided, that none of the Sellers, the Company and its Subsidiaries or any of their respective Affiliates or representatives shall be required to incur any liability (other than with respect to the authorization letters referred to above) or obligation (including any obligation to pay any commitment or other fee) or pay any amount in Article IV such respect of any assistance provided in connection with the Debt Financing prior to the Closing; provided, further, that the condition set forth in Section 8.2(a) is satisfiedSelling Entity and its Subsidiaries and their respective officers, the performance by Seller of its obligations under this Agreement employees, and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser representatives shall have no reason obligation, prior to believe that the Closing, to: (A) approve, authorize or ratify the execution of any of the conditions Definitive Financing Agreements (other than any authorization letter included in an information memorandum for purposes of marketing the Debt Financing prior to the Closing that is consistent with the above requirements) that is not contingent on the Closing, (B) take any action that would conflict with or result in a breach of any applicable governmental rule or any governmental order or any applicable law to which any Company Party is party or bound, (C) be an issuer or other obligor with respect to the Debt Financing, (D) be required to execute or deliver any document or certificate in connection with the Debt Financing contemplated by that is not contingent upon the Financing Commitments applicable Closing Date or that would be effective prior to it will not be satisfied on the effective time of the Closing Date. Purchaser affirms , (E) be required to provide access to or disclose information that it is not a condition subject to and would jeopardize attorney-client privilege of the Selling Entity or its Affiliates or otherwise would unduly interfere with the conduct of the business by the Selling Entity and its Subsidiaries in the ordinary course, or (F) cause the pre-Closing directors, managers or members of the Selling Entity or any of its other obligations under this Agreement that Purchaser obtains Subsidiaries to adopt resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing is obtained or otherwise cause the Selling Entity or any other financing for or related to any of the transactions contemplated hereby.o
Appears in 1 contract
Financing. (a) As of the date hereofBuyer shall, Purchaser has delivered at Buyer’s sole expense, use its commercially reasonable efforts to Seller true and correct copies of (i) the executed commitment lettertake, dated as of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) and the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing or cause to be funded on taken, all actions that are within Buyer’s control reasonably necessary to arrange and consummate the Closing Date or adversely affect the conditionality or availability of the Debt Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject to the terms and conditions set forth therein, to lend the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portion, the “Financing”). None of the Financing Commitments has been amended or modified prior to the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, soon as of reasonably practicable after the date of this Agreement, no such amendment but in any case on or modification is contemplated (other than, for the avoidance of doubt, amendments prior to the draft credit agreement contemplated therebyClosing Date, on the terms and amendments conditions described in the Debt Commitment Letter or joinders on other terms and conditions as would not, or would not reasonably be expected to (in each case, without the prior written consent of the Company), (v) expand the conditions precedent to the Debt Financing Commitments solely to add lendersas set forth in the Debt Commitment Letter, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of Debt Commitment Letter is in effect on the date hereof, (w) delay the Closing, (x) modify, alter or reduce any remedies provided for under the Debt Commitment Letter, as the Debt Commitment Letter is in effect on the date hereof, (y) reduce the aggregate amount available under the Debt Commitment Letter below an amount that, when combined with the proceeds of the Series D Financing, any convertible notes on terms and conditions acceptable to the Company (it being understood that such convertible notes shall not be acceptable to the Company unless they have been approved by the “Lenders” under and as defined in the Debt Commitment Letter pursuant to paragraph 6 of Annex A thereof), together with other cash on hand of Buyer (and as any parent company thereof) and its Subsidiaries taken together is sufficient to consummate the transactions contemplated hereby or (z) make the terms of the date of this Agreement Debt Financing any less favorable to the commitments contained Borrowers (as defined in the Financing Commitments have not been withdrawn or rescinded Debt Commitment Letter) than those set forth in any respect.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), Debt Commitment Letter as of the date hereof there are no side letters or contracts (except as agreed by the Company in its sole reasonable discretion)
(b) From the date hereof and until the earlier of Closing and the Termination Date, the Acquired Company and the Acquired Business shall, and shall cause their respective Representatives identified on Schedule 5.7(b) to, use commercially reasonable efforts to which Purchaser or SigmaTEK provide all cooperation as is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding reasonably necessary and customary for financings of the Financing or the transactions contemplated hereby other than as expressly type set forth in the Debt Commitment Letter and/or as may be reasonably requested by Buyer in connection with the Debt Financing. In no event shall the Company or any Representative of the Company have any obligations under this Section 5.7(b). The foregoing notwithstanding, the Acquired Company or the Acquired Business shall not be required to take or permit the taking of any action pursuant to this Section 5.7(b) that would: (i) require the Acquired Company or the Acquired Business or any Persons who are officers or directors of the Acquired Company or the Acquired Business to (A) pass resolutions or consents to approve or authorize the execution of the Debt Financing Commitments delivered or (B) enter into, execute or deliver any certificate, document, instrument or agreement or agree to Seller any change or modification of any existing certificate, document, instrument or agreement, in each case, that would be effective prior to the date hereof. Purchaser and SigmaTEK have fully paid Closing Date (other than customary “know your customer” information with respect to the Acquired Company, solely to the extent that any and all of the Representatives identified on Schedule 5.7(b) constitute a “beneficial owner” within the meaning of 31 CFR 1010.230(d)(2), as amended)), (ii) cause any representation or warranty in this Agreement to be breached by the Company, (iii) require the Acquired Company or the Acquired Business to pay any commitment fees or other fees similar fee or incur any third party expense, Liability or obligation in connection with the Debt Financing prior to the Closing or have any obligation of the Acquired Company or the Acquired Business under any agreement, certificate, document or instrument be effective until the Closing, (iv) cause any director, officer or employee or stockholder of the Acquired Company or the Acquired Business to incur any personal Liability, (v) unreasonably interfere with the ordinary course conduct of the business of the Acquired Company
(c) Buyer shall, at Buyer’s sole expense, use its commercially reasonable efforts to take, or cause to be taken, all actions that are within Buyer’s control reasonably necessary to consummate the Series D Financing on or prior to the Closing Date, on the terms and conditions described in the applicable Series D Documents which commercially reasonable efforts shall include (i) satisfying on a timely basis the conditions in the Series D Documents that are within Buyer’s control, and (ii) consummating the Series D Financing at or prior to the time upon which Closing is required to occur pursuant to the terms of this Agreement; provided, that Buyer may amend the Series D Documents solely to add or replace Series D Investors on substantially the same terms existing as of the date hereof and which would not, or would not reasonably be expected to, (w) expand the conditions precedent to the Series D Financing as set forth in the Series D Documents, (x) delay the Closing, (y) modify, alter or reduce any remedies provided for under the Series D Documents, or (z) reduce the aggregate amount available in connection with the Series D Financing below an amount that, when combined with Debt Financing, any convertible notes on terms and conditions acceptable to the Company (it being understood that such convertible notes shall not be acceptable to the Company unless they have been approved by the “Lenders” under and as defined in the Debt Commitment Letter pursuant to paragraph 6 of Annex A thereof), together with other cash on hand of Buyer (and any parent company thereof) and its Subsidiaries is sufficient to consummate the transactions contemplated hereby. Buyer shall give the Company
(d) All non-public or other confidential information provided by the Company, the Acquired Company, the Acquired Business or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Buyer will be permitted to disclose such information to any financing sources or prospective financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereof, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK (and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, to their respective counsel and auditors) so long as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to Persons (i) constitute a default agree to be bound by the Confidentiality Agreement as if parties thereto; or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, (ii) constitute a failure are subject to satisfy a condition precedent other confidentiality undertakings reasonably satisfactory to the availability Company and of which the Financing on Company is a beneficiary. (e) Notwithstanding the part of SigmaTEK or Purchaser orforegoing, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in compliance by Buyer with this Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller 5.7 shall not relieve Buyer of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason obligation to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of consummate the transactions contemplated herebyby this Agreement, whether or not the Financing is available. ARTICLE VI ADDITIONAL COVENANTS Section 6.1.
Appears in 1 contract
Financing. (a) As of the date hereof, Purchaser Parent has delivered to Seller true and correct copies the Company a copy of (i) the an executed commitment letterletter (the “Debt Commitment Letter”), dated as of the date hereof, among Purchaserfrom Citigroup Global Markets Limited, SigmaTEK SystemsHandelsbanker Capital Markets, LLC Svenska Handelsbanker AB (“SigmaTEK”Publ) and the Financing Sources thereto (including all exhibitsThe Royal Bank of Scotland plc, schedulesas Mandated Lead Arangers, and annexes theretoCitibank N.A., London Branch, Svenska Handelsbanken AB (Publ) and the executed fee letter associated therewith and referenced therein The Royal Bank of Scotland plc (collectivelysuch institutions, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing CommitmentsLenders”), pursuant . Pursuant to which the Financing Sources party thereto have committed, Debt Commitment Letter and subject to the terms and conditions set forth therein, to lend contained therein (including the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portionexhibits thereto), the Lenders have committed to provide $8,800,000,000 in aggregate principal amount of debt financing to Parent at the Closing (the “FinancingDebt Commitment”). None of the Financing Commitments has been amended or modified prior The obligations to the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, as of the date of this Agreement, no such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date of this Agreement fund the commitments contained in under the Financing Commitments have Debt Commitment Letter are not been withdrawn or rescinded in subject to any respect.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby condition other than as expressly those set forth in the Financing Commitments delivered Debt Commitment Letter. Parent has no knowledge of any fact or occurrence that would reasonably be expected to Seller prior (i) make any of the assumptions or statements set forth in the Debt Commitment Letter inaccurate, (ii) cause the Debt Commitment Letter to be ineffective or (iii) preclude in any material respect the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees satisfaction of the conditions set forth in connection with the Financing Commitments that are payable on or prior to the date hereofDebt Commitment Letter. As of the date hereof, the Financing Commitments are Debt Commitment Letter is in full force and effect with respect toand has not been amended in any material respect, and the financing and other fees that are due and payable on or before the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, date hereof under the Debt Commitment Letter have been paid in full. Subject to the knowledge of Purchaser, each terms and conditions of the other parties thereto (exceptDebt Commitment letter, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement assuming for purposes of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents this representation that would impair the availability of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations 8.02(a) and warranties set forth in Article IV such that the condition set forth in Section 8.2(a(b) is are satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason funds contemplated to believe that any of the conditions be received pursuant to the Financing contemplated by Debt Commitment Letter will be sufficient to pay the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition aggregate Consideration pursuant to the Closing or any of its Arrangement and to make all other obligations under this Agreement that Purchaser obtains necessary payments (including related fees and expenses) by Parent and Acquisition Sub in connection with the Financing or any other financing for or related to any of the transactions contemplated herebyArrangement.
Appears in 1 contract
Sources: Arrangement Agreement (Ipsco Inc)
Financing. (a) As The Purchaser shall, in consultation with the Sellers, use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary to obtain and consummate the Debt Financing (or, in the event any portion or all of the date hereofDebt Financing becomes unavailable, alternative debt or equity financing (in an amount sufficient, together with the remaining Debt Financing, if any, and any other sources available to the Purchaser, to fund the payment of the Aggregate Cash Obligations and satisfy any other obligations of the Purchaser has delivered to Seller true and correct copies of contemplated hereunder) from the same or other sources (i) such portion from sources other than any source providing the executed commitment letter, dated Debt Financing contemplated by the Debt Commitment Letter as of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) and the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment DocumentsAlternate Financing”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date)), as may be amended or modified including using its reasonable best efforts to (i) in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, and subject to the terms and conditions set forth therein, to lend maintain in effect the amounts set forth therein, a portion of which shall be used for Debt Commitment Letter until the purposes of funding the purchase occurrence of the Purchased Equity Closing, (ii) negotiate and enter into definitive agreements with respect to the other transactions contemplated by this Agreement Financing on terms and paying conditions no less favorable to the related fees and expenses specified herein Purchaser (such portionincluding, if necessary, the “Financing”). None of the Financing Commitments has been amended or modified prior to the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, as of flex provisions) than those contained therein on the date of this Agreement, no such amendment subject to any amendments or modification is contemplated modifications thereto permitted by the last sentence of this Section 5.14(a), (other thaniii) on or before the Closing Date, for satisfy (or obtain a waiver of) all conditions applicable to the Purchaser that are within its control and contained in the Debt Commitment Letter or any definitive agreements related to the Debt Financing, including the payment of any fees on or substantially concurrently with the Closing Date to the extent required as a condition to the Debt Financing, (iv) comply with its obligations under the Debt Commitment Letter and any definitive agreements related to the Debt Financing in accordance with and subject to the terms and conditions set forth therein, (v) perform and satisfy its obligations under the Debt Commitment Letter at or prior to the Closing, (vi) fully enforce its rights under the Debt Commitment Letter or any definitive agreements related to the Debt Financing and (vii) consummate the Debt Financing at or prior to the Closing. For the avoidance of doubt, amendments doubt and notwithstanding anything herein to the draft credit agreement contemplated therebycontrary, in no event shall the foregoing sentence or the “reasonable best efforts” of the Purchaser be deemed or construed to require the Purchaser to, and amendments or joinders the Purchaser shall not be required to (i) pay fees to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date of this Agreement the commitments contained Debt Providers in the Financing Commitments have not been withdrawn aggregate in excess of those contemplated by the Debt Commitment Letter or rescinded in (ii) agree to terms that are less favorable than any respect.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly terms set forth in the Financing Commitments delivered to Seller prior to Debt Commitment Letter (including the date hereof. Purchaser and SigmaTEK have fully paid “market flex” provisions of any and all commitment fees or other fees fee letters executed in connection with therewith) or any related agreements executed in connection therewith. In each case, the Financing Commitments that are payable Purchaser shall keep the Sellers informed on or prior to the date hereof. As a reasonable basis and in reasonable detail of the date hereofstatus of its efforts to arrange the Debt Financing. The Purchaser shall give the Sellers prompt written notice upon becoming aware of, the Financing Commitments are in full force and effect or receiving notice or any other communication with respect to, and are any actual breach of or default under the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, Debt Commitment Letter or any definitive agreements related to the knowledge of PurchaserDebt Financing, each or any actual termination, withdrawal or rescission of the other parties thereto (exceptDebt Commitment Letter or any credit agreement related to the Debt Financing, in each case, as such enforceability may be limited by applicable bankruptcyprior to the Closing. Notwithstanding anything in this Agreement to the contrary, insolvency, reorganization, moratorium the Purchaser expressly acknowledges and agrees that neither the availability nor terms of the Debt Financing or other similar Laws affecting any Alternate Financing are conditions to the enforcement obligations of creditors’ rights generallythe Purchaser to consummate the Transactions, and general principles of equity (regardless of whether such enforceability is considered the Purchaser reaffirms its obligation to consummate the Transactions subject to the express conditions set forth in a proceeding in Law or equity)). As Article VIII, irrespective and independent of the date hereofavailability or terms of the Debt Financing or any Alternate Financing, there are no conditions precedent the Purchaser’s use of efforts in accordance with this Section 5.14, or other contingencies otherwise. The Purchaser shall not, without the prior written consent of the Sellers, amend, modify, supplement or waive any provision of the Debt Commitment Letter or any definitive agreements related to the funding of the full amount of the Financing, other than as expressly set forth Debt Financing in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, a manner that would reasonably be expected to (i) constitute a default add any additional condition (or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability expand any existing condition) to funding of the Financing on Debt Financing, or (ii) adversely affect the ability to enforce any rights thereunder or (iii) prevent or materially delay the Closing.
(b) Prior to the Closing, the Sellers shall, and shall cause the Acquired Companies to, and shall use their reasonable best efforts to cause their Representatives to, provide all cooperation that is necessary, customary or advisable and reasonably requested by the Purchaser in writing to assist the Purchaser and the Debt Providers in the arrangement of the Debt Financing, including, without limitation, to use reasonable best efforts to: (i) cause the management of the Acquired Companies to participate in a reasonable number of meetings, presentations, sessions with rating agencies, sessions with the Debt Providers and/or other prospective lenders and due diligence sessions, in each case, with appropriate seniority and expertise; (ii) provide reasonable and customary assistance with the preparation of materials for rating agency presentations, marketing materials customary for syndicated bank financings, bank information memoranda and related lender materials, provide customary authorization letters authorizing the distribution of information to prospective lenders in connection with a syndicated bank financing (including customary accuracy and material non-public information representations) and provide reasonable cooperation with due diligence efforts of the Debt Providers; (iii) obtain documents, instrument and agreements reasonably requested by the Purchaser or the Debt Providers relating to the payoff letters described in Section 5.20; (iv) promptly provide all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and, as applicable, any beneficial ownership regulations, relating to the Acquired Companies, in each case, as reasonably requested at least eight (8) Business Days prior to the Closing Date by the Purchaser; (v) furnish to the Purchaser and the Debt Providers the Required Information and reasonable access to the Acquired Companies’ certified independent auditors in relation to such Required Information; (vi) cooperate to facilitate the identification, pledging and granting of security interests in, and obtaining perfection of any liens on, collateral in connection with the Debt Financing; (vii) assist in the preparation of financial projections and pro forma financial information (it being understood that the Purchaser shall be responsible for the preparation of any pro forma calculations, any post-Closing or other pro forma cost savings, capitalization, ownership or other pro forma adjustments that may be included therein); (viii) be available to provide and execute documents as may be reasonably requested by the Purchaser and as are customary for transactions of the type contemplated by this Agreement and that are not effective until as of or after the Closing Date, including assisting with the preparation of, and executing and delivering, customary closing certificates; and (iiix) constitute a failure to satisfy a condition precedent assist in the negotiation of one or more credit agreements, pledge and security documents and currency or interest hedging agreements and in the preparation of schedules thereto; provided, that nothing herein shall require such cooperation to the availability extent it would (A) unreasonably disrupt the conduct of the Financing on business or operations of the part Sellers or any of SigmaTEK or Purchaser ortheir Affiliates, (iiiB) require the Sellers or any of their Affiliates to agree to pay any commitment or other fees, reimburse any expenses, provide any security prior to Closing, or otherwise incur any liability or give any indemnities, (C) require delivery of any opinion or (D) require the Sellers or any of their Affiliates to take any action that would reasonably be expected to conflict with, or result in any material (with respect to Contracts) violation or breach of, or default (with or without notice or lapse of time, or both) under, any organizational document of the Sellers or any of their Affiliates, any applicable Law or any Contract to which any Seller or the Acquired Companies is a party; and provided, further, that none of the Sellers, the Acquired Companies, their respective Affiliates nor any Persons who are employees, directors or officers thereof shall be required to (I) pass resolutions or consents (except those which are subject to the knowledge occurrence of Purchaser, result in the Financing being unavailable on the Closing Date) to approve or authorize the Debt Financing, so long as or deliver any certificates in connection with the conditions Debt Financing (other than any customary authorization letters described in 5.14(b)(ii) above) prior to Closing, (II) pass resolutions or consents, or execute any agreement or certificates, unless the Financing are satisfied and each condition relevant employees, directors or officers will continue in such positions (or similar positions) after Closing or (III) prepare any pro forma financial information or statements (it being understood that the Purchaser shall be responsible for the preparation of any pro forma calculations, any post-Closing or other pro forma cost savings, capitalization, ownership or other pro forma adjustments that may be included therein) or deliver any information or take any action set forth in Section 8.2 is satisfied. As the proviso of the date hereofdefinition of “Required Information.”
(c) The Purchaser shall promptly, assuming upon written request by the accuracy Sellers, reimburse the Sellers for all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees of the representations one outside counsel and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions necessary additional counsel to the Financing contemplated extent local or regulatory counsel are required, or to the extent necessary to address a conflict or potential conflict) incurred by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing Sellers or any of its other obligations under this Agreement that Purchaser obtains their Subsidiaries (including the Acquired Companies, whose costs and expenses in connection with the Debt Financing shall, notwithstanding anything to the contrary herein, be the sole responsibility of the Purchaser) or their respective Representatives in connection with the Debt Financing or any other financing for Financing, including the cooperation contemplated in respect of the Debt Financing by this Section 5.14, or related to in connection with Section 5.20 below, and shall indemnify and hold harmless the Sellers, their Subsidiaries and their respective Representatives from and against any and all Liabilities suffered or incurred by any of them in connection with the transactions Debt Financing or any other Financing, including the cooperation contemplated herebyin respect of the Debt Financing by this Section 5.14, or in connection with Section 5.20 below, and any information used in connection therewith, except for any such all losses and other Liabilities which are determined by a final non-appealable judgment of a court of competent jurisdiction to arise from the bad faith, gross negligence, Fraud or willful misconduct or material breach of this Agreement by the Sellers, the Acquired Companies and their respective Affiliates, directors, officers, employees, agents and Representatives.
(d) For purposes of this Section 5.14, the term “Debt Financing” shall also be deemed to include any Alternate Financing, and the term “Debt Commitment Letter” shall also be deemed to include any commitment letter in respect of Alternate Financing.
Appears in 1 contract
Sources: Purchase Agreement (Act II Global Acquisition Corp.)
Financing. (a) As The parties hereto acknowledge that Geotrac currently has an outstanding loan from The Huntington National Bank of Cleveland, Ohio ("Huntington") (the date hereof"Huntington Loan") in the principal amount of Eight Million Seven Hundred and Fifty Thousand Dollars ($8,750,000). The parties hereto agree that the Company will assume the Huntington Loan in connection with the Merger, Purchaser has delivered on terms and conditions acceptable to Seller true and correct copies of (i) the executed commitment letter, dated as of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) and the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectivelyCompany, the “Financing Commitment Documents”) (providedWhites, howeverIMSG and Huntington. In the event Huntington is unwilling to continue to loan money to the Company, IMSG shall be responsible for obtaining replacement financing on terms acceptable to the Whites. The parties hereto acknowledge that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject to the terms and conditions set forth thereinin the existing Huntington loan are acceptable. IMSG agrees to advance such funds to the Company as are necessary, and not otherwise available in the Company, to lend carry the amounts cost of servicing the Huntington Loan (or any refinancings thereof) and the Note issued to the Whites pursuant to Article II hereof. Any funds advanced by IMSG to the Company shall be treated as a loan to the Company.
b) Upon consummation of the Merger, White shall have the authority, subject to the approval of the Board of Directors of the Company, such approval not to be unreasonably withheld, to sell that portion of the business of Bankers that White shall deem appropriate, together with making available for employment by purchaser, personnel who choose to accompany the part of the business sold. The proceeds of such sale or sales shall be used to reduce the debt of the Company to Huntington. Any proceeds of such sale or sales in excess of the amount required to satisfy the Huntington Loan shall be used to redeem the preferred stock of the Company held by IMSG.
c) The parties hereto acknowledge that Bankers obtained Six Million Seven Hundred and Fifty Thousand Dollars ($6,750,000) from the sale of its preferred stock and a loan from South Trust (the "South Trust Loan"). The proceeds from the sale of Bankers preferred stock and the South Trust Loan were invested in Geotrac. Bankers, IMSG and BIG hereby agree that prior to the Effective Time, IMSG will assume the South Trust Loan in exchange for the Bankers preferred stock. The preferred stock will be exchanged for cumulative 8 1/2% preferred stock of the Company the terms of which are set forth thereinon Exhibit 2.04(c) hereto. In the event IMSG closes an underwritten public offering ("IPO"), the parties hereto agree that a portion of which shall the proceeds from such IPO will be contributed to the capital of the Company and used to redeem the outstanding preferred stock of the Company.
d) At the time the Company is required to make the payments to the Other Stockholders as required by Section 2.01(d) hereof, IMSG has agreed to loan the Company up to Seven Hundred and Twenty-Eight Thousand and Sixty-nine Dollars ($729,069). The proceeds of the loan may be used by the Company to pay the amounts owed to the Other Stockholders identified on Exhibit 2.01(d) hereof as consideration for the purposes their Shares of funding the purchase Geotrac Common Stock. Such advance will be treated as a debt of the Purchased Equity Company and will accrue interest annually at the other transactions contemplated by this Agreement Prime Rate, with principal and paying the related fees and expenses specified herein (such portion, the “Financing”). None of the Financing Commitments has been amended or modified prior to the date of this Agreement in interest payable at any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, as of the date of this Agreement, no such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable time on or prior to the date hereof. As of the date hereofafter December 31, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated hereby1999.
Appears in 1 contract
Sources: Merger Agreement (Insurance Management Solutions Group Inc)
Financing. (a) As of the date hereof, Purchaser Parent has delivered to Seller true the Company true, correct and correct complete fully executed copies of of
(ia) the executed commitment letter, dated as of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) Parent and the Debt Financing Sources thereto (party thereto, including all exhibits, schedules, annexes and annexes thereto, and the executed fee amendments to such commitment letter associated therewith and referenced therein (collectively, the “Financing Debt Commitment DocumentsLetter”) and (providedb) the fee letter, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject to the terms and conditions set forth therein, to lend the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portion, the “Financing”). None of the Financing Commitments has been amended or modified prior to the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, as of the date of this Agreement, no such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments dated as of the date hereof, with respect thereto, including all exhibits, schedules, annexes and amendments to such fee letter (provided that the fee amounts, pricing caps and the rates, amounts and other economic terms included in the “market flex” and certain other economic terms of such fee letter (and its exhibits, schedules, annexes and amendments thereto) may be redacted so long as none of such redacted provisions adversely affect the conditionality, enforceability or termination provisions of the Debt Letters or reduce the aggregate principal amount of the Debt Financing contemplated hereby), and in each case, in effect as of the date of this Agreement (along with the Debt Commitment Letter, the “Debt Letters”), pursuant to which and subject to the terms and conditions thereof the Debt Financing Sources party thereto have severally committed to lend the amounts set forth therein to Parent (the provision of such funds as set forth therein, but subject to the provisions of Section 6.15, the “Debt Financing”) for the purposes set forth in such Debt Letters. As of the execution and delivery of this Agreement, the Debt Letters have not been amended, restated or otherwise modified or waived in any respect (and no amendment, restatement, modification or waiver is contemplated, other than customary joinders solely to add Debt Financing Sources) and to the Knowledge of Parent (i) the commitments contained in the Financing Commitments Debt Letters have not been withdrawn withdrawn, rescinded, amended, restated or rescinded otherwise modified in any respect.
respect and (bii) Except for fee letters (complete copies of which have no such withdrawal, rescission, amendment, restatement or modification has been provided to Seller; provided, however, that threatened by any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Debt Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a Source party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereofthereto. As of the date hereofexecution and delivery of this Agreement, the Financing Commitments Debt Letters are in full force and effect with respect to, and are constitute the legal, valid, enforceable and binding and enforceable obligations of, Purchaser and SigmaTEK of each of Parent and, to the knowledge Knowledge of PurchaserParent, each of the other parties thereto (except, in each case, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws of general applicability relating to or affecting the enforcement of creditors’ rights generallyrights, and general or by principles governing the availability of equity (regardless of equitable remedies, whether such enforceability is considered in a proceeding Proceeding at law or in Law or equity)). As of the date hereofof this Agreement, there are no conditions precedent or other contingencies related to the funding of the full amount of the FinancingDebt Financing pursuant to the Debt Letters, other than as expressly set forth in such letters. The financial resources of Parent are, and will be as of the Financing Commitment Documents delivered Closing, in the aggregate, sufficient for the satisfaction of all of Parent’s obligations under this Agreement, including the payment of the aggregate Merger Consideration (including all amounts payable in respect of Company RSUs and Company PSUs under this Agreement), and any other amounts required to Seller prior to be paid in connection with the date hereofconsummation of the Transactions. As of the date hereofof this Agreement, assuming the satisfaction of the conditions to the Merger set forth in Section 7.1 and Section 7.3, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to (i) constitute a breach or default or breach on the part of SigmaTEK or Purchaser Parent under the Financing Commitment Documents that would impair the availability of the Financing on the Closing DateDebt Letters or, (ii) constitute a failure to satisfy a condition precedent to the availability Knowledge of the Parent, any Debt Financing on the part of SigmaTEK or Purchaser or, (iii) Source party to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfiedDebt Letters. As of the date of this Agreement, there are no side letters or other agreements, Contracts or arrangements related to the Debt Financing or the funding of all or any part of the Debt Financing other than as expressly set forth in the Debt Letters. Parent has fully paid all commitment fees or other fees required to be paid on or prior to the date of this Agreement in connection with the Debt Financing and satisfied all of the other terms and conditions required to be satisfied by Parent on or prior to the date hereof. As of the date of this Agreement, assuming the accuracy satisfaction of the representations and warranties set forth in Article IV such that conditions to the condition Merger set forth in Section 8.2(a7.1 and Section 7.3, (i) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have Parent has no reason to believe that any of the conditions to the Debt Financing contemplated by the Financing Commitments applicable to it will not be satisfied on satisfied, (ii) the Parent does not have Knowledge, as of the date of this Agreement, of any reason that the full amount of the Debt Financing will not be made available to Parent, in each case, as of the time at which the Closing Date. Purchaser affirms that it is required to occur pursuant to Section 2.3, subject to and in accordance with the terms of the Debt Letters.
(b) Parent is not a condition entering into this Agreement with the intent to hinder, delay or defraud either present or future creditors of the Closing Company or any of its Subsidiaries. Each of Parent and the Surviving Corporation will be Solvent as of immediately after the consummation of the Merger and the other Transactions. For the purposes of this Agreement, the term “Solvent”, when used with respect to any Person, means that, as of any date of determination, (i) the amount of the “fair saleable value” of the assets of such Person will, as of such date, exceed the sum of (A) the value of all “liabilities of such Person, including contingent and other liabilities,” as of such date, as such quoted terms are generally determined in accordance with applicable Laws governing determinations of the insolvency of debtors, and (B) the amount that will be required to pay the probable liabilities of such Person, as of such date, on its existing debts (including contingent and other liabilities) as such debts become absolute and mature, (ii) such Person will not have, as of such date, an unreasonably small amount of capital for the operation of the businesses in which it is engaged or proposed to be engaged following such date, and (c) such Person will be able to pay its liabilities, as of such date, including contingent and other liabilities, as they mature. For purposes of this definition, “not have an unreasonably small amount of capital for the operation of the businesses in which it is engaged or proposed to be engaged” and “able to pay its liabilities, as of such date, including contingent and other liabilities, as they mature” means that such Person will be able to generate enough cash from operations, asset dispositions or refinancing, or a combination thereof, to meet its obligations under this Agreement that Purchaser obtains as they become due.
(c) Without limiting Section 9.9, in no event shall the Financing receipt or availability of any funds or financing by or to Parent or any of its Affiliates or any other financing for or related transaction be a condition to any of the transactions contemplated herebyobligations of Parent or Merger Sub hereunder.
Appears in 1 contract
Sources: Merger Agreement
Financing. (a) As of Buyer shall use its reasonable best efforts to (i) arrange the Financing on the terms and conditions described in the Financing Commitments, (ii) enter into definitive agreements with respect thereto on the terms and conditions contained in the Financing Commitments, which agreements shall be in effect as promptly as practicable after the date hereof, Purchaser has delivered to Seller true but in no event later than the Closing, and correct copies of (iiii) consummate the executed commitment letter, dated as Financing no later than the Closing. In the event that any portion of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) and Financing becomes unavailable in the manner or from the sources contemplated in the Financing Sources Commitments, (A) Buyer shall promptly notify the Company and (B) Buyer and Acquisition Sub shall use their reasonable best efforts to arrange to obtain alternative financing from alternative sources, on terms that are no more adverse to the Company, as promptly as practicable following the occurrence of such event but in no event later than the last day of the Marketing Period, including entering into definitive agreements with respect thereto (including all exhibits, schedules, and annexes thereto, and such definitive agreements entered into pursuant to the executed fee letter associated therewith and referenced therein (collectively, first or second sentence of this Section 6.13(a) being referred to as the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject to the terms and conditions set forth therein, to lend the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portion, the “FinancingAgreements”). None of the Financing Commitments has been amended or modified prior to the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, as of the date of this Agreement, no such amendment or modification is contemplated (other than, for For the avoidance of doubt, amendments to in the draft credit agreement contemplated therebyevent that (x) all or any portion of the Debt Financing has not been consummated, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereof, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the all conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the VII hereof have been satisfied or waived (other than conditions set forth in Sections 8.17.2(c) and 7.3(d)) Buyer shall agree to use the bridge facility contemplated by the Debt Commitment Letters, 8.2 if necessary, to cause the Closing to occur no later than the last date of the Marketing Period. For purposes of this Agreement, “Marketing Period” shall mean the first period of thirty (30) consecutive business days, commencing on the later of (a) the delivery of the 2006 Audited Financials and 8.3(b) February 15, SigmaTEK 2007, throughout which all conditions to Closing set forth in Sections 7.1 and Purchaser have no reason 7.2 (other than conditions that, by their own terms, cannot be satisfied until the Closing) shall be and remain satisfied. Buyer and Acquisition Sub shall, shall cause their affiliates to, and shall use their reasonable best efforts to believe that cause their Representatives to, comply with the terms, and satisfy on a timely basis the conditions applicable to such parties in the Financing Commitments, any alternative financing commitments, the Financing Agreements and any related fee and engagement letters. Buyer shall (x) furnish complete, correct and executed copies of the Financing Agreements promptly upon their execution, (y) give the Company prompt notice of any material breach by any party of any of the conditions to Financing Commitments, any alternative financing commitment or the Financing contemplated by Arrangements of which Buyer or Acquisition Sub becomes aware or any termination thereof and (z) otherwise keep the Company reasonably informed of the status of its efforts to arrange the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing (or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated herebyreplacement thereof).
Appears in 1 contract
Financing. A. HNS has agreed to supply Initial Financing subject to the terms of the Vendor Credit Facility attached hereto as Attachment 1, and the terms of this Agreement.
B. NextWave has provided to HNS projections (the "Projections") and other information (financial or otherwise) other than Projections ("Information") in respect to NextWave and its proposed financing, business and operations, including the Information and Projections provided to HNS in connection with the Investment Documents. NextWave hereby represents and covenants that (a) As all Information that has been or will be made available to HNS by NextWave or any of NextWave's representatives is or will be, when furnished, complete and correct in all material respects and does not or will not, when furnished, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein not materially misleading in light of the circumstances under which such statements are made and (b) the Projections that have been or will be made available to HNS by NextWave or any of NextWave's representatives have been or will be prepared in good faith based upon reasonable assumptions.
C. HNS commitment to provide the Credit Facility described in the Term Sheet is subject to (a) there not occurring or becoming known to HNS any material adverse condition or material adverse change in or affecting the business, operations, property condition (financial or otherwise) or prospects of NextWave and its subsidiaries, taken as a whole, (b) HNS not becoming aware after the date hereof of any information or other matter affecting NextWave or the transactions contemplated by the Term Sheet which is inconsistent in a material and adverse manner with any such information or other matter disclosed to us prior to the date hereof, Purchaser has delivered to Seller true and correct copies of (ic) the executed commitment letternegotiation, dated as execution and delivery on or before January 31, 1997 of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) and the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance definitive documentation with the terms hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject respect to the Credit Facility satisfactory to HNS and its counsel and (d) the other conditions set forth or referred to in the Term Sheet. The terms and conditions set forth therein, to lend the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portion, the “Financing”). None of the Financing Commitments has been amended or modified prior to the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, as of the date of this Agreement, no such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn Term Sheet may be modified or rescinded supplemented if further information becomes available to HNS in any respect.
accordance with clause (b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, above. Those matters that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce are not covered by the amount provisions of the Financing Term Sheet are subject to the approval and agreement of HNS and NextWave.
D. The Term Sheet is intended to be funded on solely for the Closing Date or adversely affect the conditionality or availability benefit of the Financing contemplated thereby on the Closing Date)Parties hereto and is not intended to confer any benefits upon, as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditionscreate any rights in favor of, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby any person other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereof, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated herebyParties hereto.
Appears in 1 contract
Sources: Strategic Supply and Development Agreement (Next Wave Wirelesss Inc)
Financing. (a) As of Parent and MergerSub shall use their reasonable best efforts to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letters as promptly as practicable after the date hereof, Purchaser has delivered including (but subject in all respects to Seller true and correct copies of Section 11.13) their reasonable best efforts to (i) maintain in effect the executed commitment letterDebt Commitment Letters, dated as of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”ii) negotiate and the Financing Sources enter into definitive agreements with respect thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject to the terms and conditions contained in the Debt Commitment Letters (including the flex provisions) or on other terms no less favorable to Parent and MergerSub as to conditionality, (iii) satisfy on a timely basis all conditions applicable to Parent and MergerSub in the Debt Commitment Letters that are within their control (including by consummating the Equity Financing pursuant to the terms of the Equity Commitment Letter), (iv) consummate the Financing at or prior to the Closing and (v) enforce their rights under the Equity Commitment Letter to the extent set forth therein, in Section 11.13 (but not the Debt Commitment Letters as more fully described in Section 11.13); it being understood that Parent and MergerSub may seek to lend obtain financing in a private placement of securities pursuant to Rule 144A promulgated under the amounts set forth therein, Securities Act in lieu of a portion of which the Debt Financing (and references to the Debt Financing in this Section 8.03 shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (deemed to include such portion, the “Financing”private placement). None of the Financing Commitments has been amended or modified prior to the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, as of the date of this Agreement, no such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that (1) Parent and MergerSub shall not release or waive the Debt Commitment Letters or the obligations of the arrangers and lenders thereunder and (2) Parent and MergerSub shall proceed with, and consummate, the financing contemplated in the Debt Financing Letters in the event that such alternative private placement financing is not available. Parent shall keep the Company reasonably informed with respect to all material activity concerning the status of the Debt Financing contemplated by the Debt Commitment Letters and shall give the Company notice of any material adverse change with respect to such fee letter may redacted Financing as promptly as practicable. Without limiting the generality of the foregoing, Parent and MergerSub shall give the Company prompt notice (x) of any material breach or material default by any party to economic and “flex” termsany of the Debt Commitment Letters, none or any definitive agreements related to the Debt Financing, in each case of which would reduce the amount Parent or MergerSub becomes aware, (y) of the receipt of any written notice or other written communication, in each case received from any Debt Financing source with respect to be funded on any (3) material breach of Parent’s or MergerSub’s obligations under the Closing Date Debt Commitment Letters or adversely affect definitive agreements related to the conditionality Debt Financing, or availability default, termination or repudiation by any party to any of the Debt Commitment Letters or definitive agreements related to the Debt Financing contemplated thereby on the Closing Date), as or (4) material dispute between or among any parties to any of the date hereof there are no side letters Debt Commitment Letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions definitive agreements related to the funding Debt Financing or any provisions of any of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereof, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (exceptDebt Commitment Letters, in each case, as such enforceability may with respect to the obligation to fund the Debt Financing or the amount of the Debt Financing to be limited by applicable bankruptcy, insolvency, reorganization, moratorium funded at Closing and (z) of the receipt of any notice or other communication (written or verbal) on the basis of which Parent expects that a party to the Debt Financing will fail to fund the Debt Financing or is reducing the amount of the Debt Financing; provided that in no event shall Parent or MergerSub be under any obligation to disclose any information pursuant to clauses (1) or (2) that would waive the protection of attorney-client or similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether privilege if such enforceability is considered party shall have used reasonable best efforts to disclose such information in a proceeding in Law or equity))way that would not waive such privilege. As soon as reasonably practicable, but in any event within five Business Days of the date hereofthe Company delivers to Parent or MergerSub a written request, there are no conditions precedent Parent and MergerSub shall provide any information reasonably requested by the Company relating to any circumstance referred to in clauses (x), (y) or other contingencies related to the funding (z) of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated herebyimmediately preceding sentence.
Appears in 1 contract
Sources: Merger Agreement (Ebix Inc)
Financing. (a) As of the date hereof, Purchaser Parent has delivered to Seller true the Company a complete and correct copies copy of (i) the a fully executed commitment letter, dated as of letter from the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”financial institution(s) and the Financing Sources thereto named therein (including all exhibits, schedules, and annexes thereto, to such letters as and to the executed fee letter associated therewith and referenced therein (collectivelyextent delivered to the Company on or prior to the date of this Agreement, the “Financing Debt Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing CommitmentsLetter”), pursuant to which such financial institutions (including any financial institutions providing Alternative Financing or Replacement Debt Financing, the “Financing Sources party thereto Sources”) have committed, upon the terms and subject to the terms and conditions set forth therein, to lend provide the amounts set forth therein, a portion of which shall be used for debt financing described therein in connection with the purposes of funding the purchase Transactions. The Debt Commitment Letter and any other debt commitment letter (including any replacement of the Purchased Equity Debt Commitment Letter in connection with any Alternative Financing or Replacement Debt Financing) executed in accordance with Section 5.14, as replaced, amended, supplemented, modified or waived in accordance with Section 5.14, including all exhibits, schedules, and annexes to such letters, are hereinafter referred to together as the “Debt Commitment Letters.” The financing contemplated pursuant to the Debt Commitment Letters is hereinafter referred to as the “Debt Financing.”
(b) As of the date of this Agreement, the Debt Commitment Letters are in full force and effect and are legal, valid and binding obligations of Parent, and to the knowledge of Parent, the other transactions contemplated by this Agreement parties thereto, and paying enforceable in accordance with their respective terms against Parent, and to the related fees and expenses specified herein (such portionknowledge of Parent, the “Financing”). None each of the Financing Commitments has other parties thereto. All commitment fees required to be paid under the Debt Commitment Letters have been amended paid in full or modified will be duly paid in full as and when due, and Parent and Merger Sub have otherwise satisfied all of the other items and conditions required to be satisfied by them pursuant to the terms of the Debt Commitment Letters on or prior to the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability Agreement. None of the FinancingDebt Commitment Letters have been amended, and, as of modified or terminated on or prior to the date of this Agreement, no such amendment amendment, modification or modification termination is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn and no Debt Commitment Letter will be amended or rescinded in any respect.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), modified as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than Second Effective Time except as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection consistent with the Financing Commitments that are payable on or prior to the date hereofSection 5.14. As of the date hereof, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereofthis Agreement, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a breach or default by Parent or breach on the part of SigmaTEK or Purchaser Merger Sub under the Financing any Debt Commitment Documents that would impair the availability Letter. Neither Parent nor Merger Sub is, as of the Financing on the Closing Datedate of this Agreement, (ii) constitute a failure to satisfy a aware of any fact, occurrence or condition precedent to the availability that makes any of the Financing on the part of SigmaTEK assumptions or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition statements set forth in Section 8.2 any Debt Commitment Letter inaccurate (assuming the accuracy of the Company’s representations and warranties), in any material respect or that would cause the commitments provided in the Debt Commitment Letter to be terminated or ineffective or any of the conditions contained therein not to be met. The consummation of the Debt Financing is satisfiedsubject to no conditions precedent other than those expressly set forth in the copies of the Debt Commitment Letters delivered to the Company, and there are no contingencies that would permit the Financing Sources to reduce the total amount of the Debt Financing other than those expressly set forth in the copies of the Debt Commitment Letters delivered to the Company. Except for fee letters relating to fees with respect to the Debt Financing (redacted copies of which, removing only certain fee and market “flex” provisions, have been provided to the Company), there are no side letters or other agreements, contracts or arrangements related to the funding of the Debt Financing, other than as expressly set forth in the Debt Commitment Letters delivered to the Company prior to the date of this Agreement. As of the date hereofof this Agreement, assuming no breach by the accuracy Company of the its representations and warranties set forth under this Agreement (and cooperation and assistance by the Company as provided herein) and no breach or default by the Company of its obligations under this Agreement in Article IV either case such that the condition set forth in Section 8.2(a6.2(a) is would fail to be satisfied, the performance and based upon facts and events known by Seller of its obligations under this Agreement and the satisfaction Parent as of the other conditions set forth in Sections 8.1date of this Agreement, 8.2 and 8.3, SigmaTEK and Purchaser neither Parent nor Merger Sub have no any reason to believe that any of the conditions to the Debt Financing contemplated by the Financing Commitments applicable to it will not be satisfied or the Debt Financing will not be consummated as contemplated in the Debt Commitment Letters on or prior to the Closing Date. Purchaser affirms that it is not a condition Assuming the accuracy of the representations and warranties of the Company set forth in this Agreement and performance by the Company of its obligations under Section 5.2(a), the aggregate proceeds of the Debt Financing, together with any cash or cash equivalents held by Parent, as of the Second Effective Time, will be sufficient to enable them to pay in cash all amounts required to be paid by them in connection with the Closing Transactions, including the Merger Consideration (and the treatment of Stock Options, Restricted Shares, Company Performance RSUs and Company ESPP pursuant to Section 2.5) and all payments, fees and expenses payable by them related to or arising out of the consummation of the Transactions.
(c) In no event shall the receipt or availability of any funds or financing (including, for the avoidance of doubt, the Debt Financing) by Parent, Merger Sub or any of its other obligations under this Agreement that Purchaser obtains the Financing their respective Affiliates or any other financing for or related be a condition to any of the transactions contemplated herebyParent’s or Merger Sub’s obligations hereunder.
Appears in 1 contract
Financing. (a) As Purchaser shall be entitled to encumber the Hotels or any of them with one or more Authorized Mortgages which are expressly subordinate to this Agreement or in connection with which the date hereof, Purchaser has delivered to Seller true following terms and correct copies of conditions are satisfied:
(i) the executed commitment letterloan or other debt secured by such Authorized Mortgage shall not be cross-collateralized with other property or hotels which are not managed or franchised by Manager, dated as IHG or their respective Affiliates;
(ii) the principal amount secured by such Authorized Mortgage shall not exceed the sum of seventy five percent (75%) (or, if less than four (4) Hotels secure such principal amount, sixty five percent (65%)) of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) and the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount sum of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject to the terms and conditions set forth therein, to lend the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portion, the “Financing”). None of the Financing Commitments has been amended or modified prior to the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, fair market value as of the date of this Agreement, no the granting of such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as Authorized Mortgage of the date hereof), Pledged Hotels and the other properties securing such principal amount;
(iii) as of the date of the granting of such Authorized Mortgage, the Debt Service Coverage Ratio associated with such loan or debt secured thereby shall not be less than (i)1.4 if fewer than four (4) Hotels secure such loan or other debt or (ii) 1.3 if four (4) or more Hotels secure such loan or other debt; and
(iv) the holder of such Authorized Mortgage shall execute and deliver to Manager (Manager agreeing to likewise execute and deliver to such holder) a so-called subordination, non-disturbance and attornment agreement which shall provide that:
(A) this Agreement and Manager’s rights hereunder are subject and subordinate to the commitments contained Authorized Mortgage, the lien thereof, the rights of the holder thereof and to any and all advances made thereunder, interest thereon or costs incurred in connection therewith;
(B) so long as this Agreement is in full force and effect and there exists no Manager Default which has not been cured within any applicable notice or grace period, Manager’s rights under this Agreement shall not be disturbed by reason of such subordination or by reason of foreclosure of such Authorized Mortgage or receipt of deed in lieu of foreclosure;
(C) Manager shall attorn to the holder or the purchaser at any such foreclosure or the grantee of any such deed (each, a “Successor Purchaser”);
(D) in the Financing Commitments have event of such attornment, the terms of this Agreement binding on Purchaser and Manager shall continue in full force and effect as a direct agreement between such Successor Purchaser and Manager, upon all the terms, conditions and covenants set forth herein, except that the Successor Purchaser shall not been withdrawn be (1) bound by any payment of Owner’s Priority, Owner’s Percentage Priority or rescinded the Residual Distribution in advance of when due; (2) bound by any amendment or modification of this Agreement made after the date that Manager first had written notice of such Authorized Mortgage without the consent of the holder thereof; (3) liable in any respectway to Manager for any act or omission, neglect or default on the part of Purchaser or Owner under this Agreement; (4) obligated to perform any work or improvements to be done by Purchaser or Owner or to make any advances except for those advances to be made pursuant to Section 5.2(c) from and after the date on which such Successor Purchaser acquired the Hotel(s); or (5) subject to any counterclaim or setoff which theretofore accrued to Manager against Purchaser or Owner;
(E) In the event of a casualty or condemnation affecting any Pledged Hotel which does not result in the termination of this Agreement with respect to such Pledged Hotel, the net insurance proceeds or Award shall be applied to the restoration of such Hotel as herein provided; and
(F) Such other terms as are customary for similar agreements.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce In the amount event less than all of the Financing Hotels are to secure the loan or other debt secured by an Authorized Mortgage, Owner shall have the right to cause the Pledged Hotels to be funded on managed pursuant to a separate management agreement which agreement shall be for a term equal to the Closing Date or adversely affect the conditionality or availability unexpired portion of the Financing contemplated thereby Term and otherwise on substantially the Closing Date)same terms of this Agreement except as otherwise provided herein, as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereof, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such provided that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated hereby.Pledged
Appears in 1 contract
Sources: Management Agreement (Hospitality Properties Trust)
Financing. (a) As of the date hereof, Purchaser Parent has delivered to Seller true the Company true, correct and correct complete copies of (i) the executed commitment letter dated as of the date hereof (the "Debt Commitment Letter"; provided, that for purposes of this Agreement, the Debt Commitment Letter shall also include, after the date hereof, to the extent alternative financing from alternative financial institutions is obtained in accordance with this Agreement, any commitment letters executed b such alternative financial institutions in res ect of such alternative financin from (the "Lenders"; provided, that for purposes of this Agreement, the Lenders shall also include, after the date hereof, to the extent alternative financing from alternative financial institutions is obtained in accordance with this Agreement, **MSPSC Electronic Copy ** 2016-UA-186 Filed on 09/23/2016 ** any such alternative financial institution), together with the executed fee letter referenced in the Debt Commitment Letter (the "Debt Fee Letter") (except that the fee amounts, pricing caps, certain provisions relating to "flex" and "successful syndication" and other economic terms (none of which would adversely affect the amount or availability of the Debt Financing) set forth therein have been redacted), pursuant to which, and subject only to the terms and conditions expressly set forth therein, the Lenders have committed to lend the amounts set forth therein to Parent for the purpose of funding the transactionscontemplated by this Agreement (the "Debt Financing"); provided, that for purposes of this Agreement, the Debt Financing shall also include, after the date hereof, to the extent alternative financing from alternative financial institutionsis obtained in accordance with this Agreement, any such alternative financing, and (ii) the executed equity commitment letter, dated as of the date hereofhereof (the "Equity Commitment Letter" and, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) and together with the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectivelyDebt Commitment Letter, the “Financing "Commitment Documents”Letters") (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”)from'the Guarantors, pursuant to which which, and subject only to the Financing Sources party thereto terms and conditions expressly set forth therein, the Guarantors have committedcommitted to invest the amounts set forth therein (the "Equity Financing" and, togetherwith the Debt Financing, the "Financing"). Other than the Debt Fee Letter, there are no side letters or other agreements, contracts or arrangements (except for customary engagement letters in respect of the Debt Financing) relating to the Commitment Letters. The Equity Commitment Letter provides, and will continue to provide, that, subject to the terms and conditions set forth therein, to lend the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portionEquity Commitment Letter, the “Financing”). None of Company is a third party beneficiary thereofto the Financing Commitments has been amended or modified prior to the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, as of the date of this Agreement, no such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respectextent provided therein.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereof, each of the Financing Commitments are Commitment Letters is in full force and effect with respect toand has not been withdrawn or termiriated or otherwise amended, and are supplemented or modified in any respect. Each of the Commitment Letters, in the form so delivered, is a legal, valid, valid and binding obligation of Parent and enforceable obligations of, Purchaser and SigmaTEK Merger Sub and, to the knowledge of Purchaserknowledgeof the Parent, each of the other parties thereto (exceptthereto, in each case, except as such the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws laws affecting the enforcement of creditors’ ' rights generally, generally and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK Parent or Purchaser Merger Sub under any term, or a failure of any condition, of any of the Financing Commitment Documents that would impair the availability Letters or otherwise result in any portion of the Financing on contemplated thereby to be unavailable. Assuming the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability satisfaction of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As 5.1 (Conditions to the Obligations of Each Party to Effect the Merger) and Section 5.2 (Additional Conditions to the Obligations of Parent and Merger Sub) hereof and the completion of the date hereofMarketing Period, assuming the accuracy neither Parent nor Merger Sub has reason to believe that it could be unable to satisfy on a timely basis any term or condition of any of the representations Commitment Letters required to be satisfied by it or that any portion of the Financing contemplated therebywill be unavailable to Parent and warranties set forth ▇▇▇▇▇▇ Sub at the Closing. Parent and Merger Sub have fully paid any and all commitment fees or other fees in Article IV such connection with the Commitment Letters that are due and payable on or before the condition date of this Agreement and will fully pay at or prior to the Closing any and all commitment fees or other fees in connection with the Commitment Letters that are due and payable after the date of this Agreement and at or prior to the Closing. **MSPSC Electronic Copy ** 2016-UA-186 Filed on 09/23/2016 **
(c) Assuming the satisfaction of the conditions set forth in Section 8.2(a5.1 (Conditions to the Obligations of Each Party to Effect the Merger) is satisfiedand Section 5.2 (Additional Conditions to the Obligations of Parent and Merger Sub) hereof, the performance completion of the Marketing Period and the funding of the Debt Financing, the aggregate proceeds from the Financing (after netting out original issue discount and similar premiums and charges provided under the Debt Commitment Letter and the Dept Fee Letter) are sufficient to fund all of the amounts required to be provided by Seller Parent and/or Merger Sub pursuant to Section 1.2(b) (Closing-Party Deliveries) for the consummation of its the Transactions, and are sufficient for the satisfaction of all of Parent's and Merger Sub's payment obligations under this Agreement at the Closing, including the payment of the Aggregate Closing Stockholder Proceeds and the satisfaction Aggregate Closing Option Proceeds and the payment of all associated costs and expenses required by ▇▇▇▇▇▇ and Merger Sub at the Closing (including any repayment or refinancing of Payoff Indebtedness). There are no conditions precedent or other contingencies related to the funding or investing, as applicable, of the full athount of the Financing, other conditions than as expressly set forth in Sections 8.1the Commitment Letters.
(d) Subject to the terms of Section 8.10 (Remedies), 8.2 the obligations of Parent and 8.3Merger Sub under this Agreement are not contingent in any respect upon the funding of the amounts contemplated to be fundedpursuant to the Commitment Letters. Subject to the terms of Section 8.10 (Remedies), SigmaTEK the obligations of Parent and Purchaser have no reason Merger Sub under this Agreement are not subject to believe that any conditions regarding Parent's, Merger Sub's, their respective Affiliates', or any other Person's ability to obtain financing for the consummation of the Transactions.
(e) None of the Guarantors, Parent, Merger Sub or any of their respective Affiliates has entered into any Contract, arrangement or understanding (i) awarding any agent, broker, investmentbanker or financial advisor any financialadvisory role on an exclusive basis in connection with the conditions Merger; or (ii) prohibiting or seeking to prohibit any bank, investment bank or other potential provider of debt financing from providing or seeking to provide debt financing or financial advisory services to any Person in connection with a transactionrelating to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing Company or any of its other obligations under this Agreement that Purchaser obtains Subsidiaries in connection with the Financing or any other financing for or related to any of the transactions contemplated herebyMerger.
Appears in 1 contract
Sources: Purchase Agreement
Financing. (a) As of the date hereof, Purchaser has delivered to Seller true and correct copies of (i) The net proceeds contemplated from the executed commitment letterdebt financing pursuant to the Financing Agreement, dated as together with other financial resources of the date hereofGuarantor, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) will be sufficient for the Buyer to fulfil its obligations under this Agreement and allow the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount consummation of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing transactions contemplated thereby on the Closing Date), as may be amended or modified under this Agreement in accordance with the terms hereofand conditions set out hereunder.
(ii) The Buyer has delivered to the Sellers’ Agent an executed copy of a USD 1,500,000,000 bridge loan credit agreement, collectivelydated as of 14 May 2017 (the Financing Agreement), among the Guarantor, the “Financing Commitments”)lenders party thereto and JPMorgan Chase Bank, N.A., as administrative agent, pursuant to which the Financing Sources party thereto have committed, and subject to the terms and conditions set forth thereinthereof, the lenders thereunder have severally committed to lend the amounts set forth therein, a portion of which shall be used for therein to the purposes of funding the purchase of the Purchased Equity Guarantor and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portion, the “Financing”). None of the Financing Commitments has its terms have not been amended or modified prior to the waived since such date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, as of the date of this Agreement, no such amendment or modification is contemplated (other than, except for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), waivers permitted by this paragraph (f) and as of the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereof, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto Sellers’ Agent.
(except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). iii) As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, debt financing pursuant to the Financing Agreement other than as expressly set forth in the Financing Commitment Documents delivered Agreement. Except with respect to Seller those conditions precedent set forth in section 3.02(d) and 3.02(h) of the Financing Agreement, the conditions precedent to the funding of the debt financing pursuant to the Financing Agreement on the Completion Date are either (i) solely within the control of the Buyer or (ii) conditions precedent to Completion under this Agreement.
(iv) The Buyer will do such things and take such actions as necessary to ensure that all conditions precedent under the Financing Agreement that are within the Buyer’s control (or, if any conditions precedent under the Financing Agreement are within the control of the administrative agent or the lenders thereunder, the Buyer shall use reasonable endeavours to ensure that such conditions precedent) are satisfied on or prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK or Purchaser Completion Date and shall enforce its rights under the Financing Commitment Documents Agreement in the event that would impair any other party to the availability Financing Agreement fails to provide the debt financing contemplated by the Financing Agreement.
(v) The Guarantor may amend or waive the terms of the Financing Agreement whilst this Agreement remains in effect, so long as:
(A) such amendment or waiver would not reduce the amounts available thereunder unless such amounts are replaced with an Alternative Financing (in accordance with paragraph (vi) below); and
(B) such amendment or waiver would not make more onerous on it the Closing Date, (ii) constitute a failure to satisfy a condition precedent conditions attached to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in amounts under the Financing being unavailable on Agreement.
(vi) The Guarantor shall not exercise any rights that it may have to terminate the Closing Date, Financing Agreement or reduce the commitments under the Financing Agreement unless the Financing Agreement or commitments thereunder (as applicable) is or are replaced with an Alternative Financing (in accordance with paragraph (vii) below) or the proceeds of any debt or equity securities issued by the Guarantor after the date hereof (in accordance with paragraph (viii) below).
(vii) The Guarantor may replace all or a portion of the commitments under the Financing Agreement with other debt financing (Alternative Financing) so long as (A) other than any immaterial differences which do not result in such conditions being more difficult to satisfy, the conditions to the availability of such Alternative Financing are satisfied no more onerous to the Guarantor or other member of the Consolidated Group (as defined in the Financing Agreement or any similar defined term in any Alternative Financing) than those applicable to the Financing Agreement, (B) the aggregate amount of such Alternative Financing is at least equal to the amount of the commitments under the Financing Agreement so replaced, (C) if that Alternative Financing is a loan financing, the assignments and participations provision in that Alternative Financing shall not (in respect of assignments or transfers on or prior to the Completion Date) differ in any material respect to Section 9.07 of the Financing Agreement on the date hereof and (D) the Purchaser promptly provides a complete and final version of the relevant documentation in respect of that Alternative Financing together with all exhibits thereto to the Sellers’ Agent. If the Buyer enters into any Alternative Financing, the undertakings in this paragraph (f) with respect to the Financing Agreement shall also apply to such Alternative Financing and each condition set forth reference in Section 8.2 is satisfied. As this Agreement to the Financing Agreement and any reference to a defined term or clause or section in the Financing Agreement shall include a reference to the documentation relating to such Alternative Financing together with all exhibits thereto and any similar defined term or equivalent clause or section in such Alternative Financing.
(viii) If the operation of paragraph (d) of section 2.05 of the Financing Agreement in its form as at the date hereof, assuming the accuracy of this Agreement (or as subsequently amended) results in a reduction of the representations and warranties set forth in Article IV such commitments under the Financing Agreement, the Guarantor shall ensure that the condition set forth proceeds or commitments received by the Consolidated Group (as defined in Section 8.2(athe Financing Agreement) is satisfiedwhich resulted in such reduction are available for, and applied by, the performance by Seller of Buyer to fulfil its obligations under this Agreement and allow the satisfaction consummation of the other transactions contemplated under this Agreement in accordance with the terms and conditions set forth out hereunder.
(ix) For the avoidance of doubt, nothing in Sections 8.1this Agreement shall prohibit, 8.2 limit or otherwise restrict the Guarantor from issuing debt or equity securities on and 8.3, SigmaTEK after the date hereof and Purchaser have no reason to believe that any (at the time of issuance) reducing the conditions commitments under the Financing Agreement by an amount equal to the Financing contemplated net cash proceeds received by the Financing Commitments applicable Guarantor from such issuance, so long as Guarantor shall ensure that such net cash proceeds are available for, and applied by, the Buyer to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing or any of fulfil its other obligations under this Agreement that Purchaser obtains and allow the Financing or any other financing for or related to any consummation of the transactions contemplated herebyunder this Agreement in accordance with the terms and conditions set out hereunder.
Appears in 1 contract
Sources: Securities Purchase Agreement
Financing. (a) As Prior to the Closing Date, upon Parent’s request, the Company shall use its reasonable efforts to, and to cause its Subsidiaries to use reasonable efforts to, prior to or at, and conditioned upon, the occurrence of the date hereofClosing, Purchaser has delivered deliver all notices and take all other actions required to Seller true and correct copies facilitate the termination of (i) commitments under the executed commitment letterCredit Agreement, dated as of the date hereofAugust 28, 2014, among PurchaserPMI Holdings, SigmaTEK SystemsInc., LLC (“SigmaTEK”) and as borrower, the Financing Sources thereto (including all exhibitsguarantors party thereto, schedules, and annexes the lenders party thereto, and ▇▇▇▇▇ Fargo Bank, National Association, as administrative agent for the executed fee letter associated therewith lenders party thereto (as successor to Antares Capital LP (as successor to General Electric Capital Corporation)) (as the same may be amended, modified, supplemented, restated or amended and referenced therein (collectivelyrestated from time to time, including by the First Amendment to Credit Agreement, dated as of October 31, 2016, and the Second Amendment to Credit Agreement, dated as of November 6, 2018, the “Financing Commitment DocumentsSubject Indebtedness”) (provided), however, that such Financing Commitment Documents may be redacted as to economic the repayment in full of all obligations then outstanding thereunder and “flex” terms, none the release of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby all Liens in connection therewith on the Closing Date), as may be amended and deliver to Parent prior to or modified at the Closing a customary payoff letter in accordance with respect of the terms hereof, collectively, Subject Indebtedness (the “Financing CommitmentsPayoff Letter”), pursuant which Payoff Letter shall (i) indicate the total amount required to which the Financing Sources party thereto have committedbe paid to fully satisfy all principal, subject interest, prepayment premiums, penalties, breakage costs or other similar obligations related to the terms and conditions set forth therein, to lend the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portion, the “Financing”). None of the Financing Commitments has been amended or modified prior to the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, Subject Indebtedness as of the date of this Agreement, no such amendment or modification is contemplated Closing Date (the “Payoff Amount”) and (ii) state that all obligations (including guarantees) in respect thereof (other than, for than those contingent indemnification obligations that customarily remain following termination of a credit agreement) and Liens in connection therewith on the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as assets of the date hereof)Company or any of its Subsidiaries shall be, and as substantially concurrently with the receipt of the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby Payoff Amount on the Closing Date), as released or arrangements reasonably satisfactory to Parent for such release shall have been made by such time; provided that, notwithstanding anything to the contrary in this Agreement, Parent and Merger Sub acknowledge and agree that the delivery of the date hereof there are no side letters or contracts Payoff Letter pursuant to which Purchaser or SigmaTEK is this paragraph by the Company to Parent shall not be a party that impose conditions, affect the availability of or modify, amend or expand the conditions condition to the funding Closing, and the Offer and the Closing are not conditioned upon Parent receiving such Payoff Letter. Notwithstanding anything to the contrary herein, all such requested cooperation provided in accordance with this Section 5.11 shall not unreasonably interfere with the ongoing operations of the Financing Company and its Subsidiaries and in no event shall the Company or the transactions contemplated hereby any of its Subsidiaries be required to bear any cost or expense other than as expressly set forth de minimis cost or expenses, pay any commitment or other fee, enter into any definitive agreement, incur any other Liability, make any other payment or agree to provide any indemnity in connection with any of the Financing Commitments delivered to Seller foregoing prior to the date hereofEffective Time. Purchaser and SigmaTEK have fully paid In addition, nothing in this Section 5.11 shall require any and all commitment fees action that would conflict with or other fees in connection with violate the Financing Commitments that are payable on Company Organizational Documents or any Law or result in, prior to the date hereof. As of the date hereofEffective Time, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations contravention of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, that would reasonably be expected to (i) constitute result in, prior to the Effective Time, a default violation or breach on of, or default under, any Contract to which the part of SigmaTEK Company or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, (ii) constitute its Subsidiaries is a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated herebyparty.
Appears in 1 contract
Financing. (a) As to each Mortgage Loan which contains a provision in the nature of the date hereof, Purchaser has delivered to Seller true and correct copies of a (i) "due-on-sale" clause, which by its terms (1) provides that such Mortgage Loan shall (or may at the executed commitment letter, dated as mortgagee's option) become due and payable upon the sale or other transfer of an interest in the related Mortgaged Property or of a controlling interest in the related Mortgagor; or (2) provides that such Mortgage Loan may not be assumed without the consent of the date hereofmortgagee in connection with any such sale or other transfer, among Purchaserfor so long as such Mortgage Loan is included in the Trust Fund, SigmaTEK Systemsor (ii) as to each Mortgage Loan which contains a provision in the nature of a "due-on-encumbrance" clause, LLC which by its terms: (“SigmaTEK”1) provides that such Mortgage Loan shall (or may at the mortgagee's option) become due and payable upon the creation of any additional lien or other encumbrance on the related Mortgaged Property; or (2) requires the consent of the mortgagee to the creation of any such additional lien or other encumbrance on the related Mortgaged Property, each of the Master Servicer and the Financing Sources thereto Special Servicer shall, on behalf of the Trustee as the mortgagee of record, as to those Mortgage Loans it is obligated to service hereunder, exercise (including all exhibitsor waive its right to exercise) any right it may have with respect to such Mortgage Loan (x) to accelerate the payments thereon, schedulesor (y) to withhold its consent to any such sale or other transfer, and annexes theretoin a manner consistent with the Servicing Standard, but subject to Section 3.20(a)(iii); Notwithstanding anything to the contrary contained herein, neither the Master Servicer nor the Special Servicer shall waive any right it has, or grant any consent it is otherwise entitled to withhold, under any related "due-on-sale" or "due-on-encumbrance" clause, unless both the Master Servicer and the executed fee letter associated therewith and referenced therein (collectively, Special Servicer shall have followed the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject to the terms and conditions procedures set forth therein, to lend the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portion, the “Financing”). None of the Financing Commitments has been amended or modified prior to the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, as of the date of this Agreement, no such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date of this Agreement the commitments contained those Mortgage Loans in the Financing Commitments have not been withdrawn or rescinded in any respect.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly manner set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereof, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to immediately below clauses (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, through (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated hereby.vi):
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Banc of America Commercial Mort Pass Through Cert Ser 2002-2)
Financing. (a) As Each of Parent and Merger Sub shall use commercially reasonable efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary to arrange the date hereof, Purchaser has delivered Financing in a timely manner including to Seller true and correct copies of (i) maintain in effect the executed commitment letterFinancing Documents, dated as (ii) satisfy, or cause its Representatives to satisfy, on a timely basis all conditions in the Financing Documents that are within their respective control, other than any condition where the failure to be so satisfied is a direct result of the date hereofCompany’s failure to comply with its obligations under this Agreement), among Purchaser, SigmaTEK Systems, LLC and (“SigmaTEK”iii) and assuming all conditions precedent in the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committedbeen satisfied, subject to the terms requirements of Section 2.02, draw upon and conditions set forth therein, to lend the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portion, the “Financing”). None of consummate the Financing Commitments has been amended at or modified prior to the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, as of the date of this Agreement, no such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respectClosing.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, If Parent or Merger Sub becomes aware that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount portion of the Debt Financing to be funded has become unavailable on the Closing Date terms and conditions contemplated in the Debt Financing Commitment, (A) Parent shall promptly so notify the Company, and (B) each of Parent and Merger Sub shall use commercially reasonable efforts to arrange to obtain alternative debt financing from the same or adversely affect alternate sources, as promptly as practicable following the conditionality or availability occurrence of such event (and in any event no later than ten (10) Business Days prior to the Financing contemplated thereby on the Closing End Date), as on terms and conditions not materially less favorable, in the aggregate and from the standpoint of the date hereof there Company, to Parent and Merger Sub than those contained in the Debt Financing Commitment, in an amount sufficient (assuming the Rollover Shares are no side letters or contracts cancelled without payment of consideration as contemplated by and in accordance with the Rollover Agreement) to which Purchaser or SigmaTEK is a party that impose conditionsconsummate the Merger and the other Transactions (the “Alternative Debt Financing”), affect and to enter into new definitive agreements with respect to such Alternative Debt Financing (the availability of or modify, amend or expand the conditions “Alternative Debt Financing Documents”) and Parent shall deliver to the funding Company as promptly as practicable (and no later than two (2) Business Days) after such execution, a true and complete copy of each such Alternative Debt Financing Document (except for customary engagement letters). Any reference in this Agreement to (A) the “Debt Financing” shall mean the debt financing contemplated by the Debt Financing Commitment as amended, restated, supplemented, replaced, substituted or the transactions contemplated hereby other than as expressly set forth modified pursuant to this Section 7.14(b) and Section 7.14(c) below, (B) any reference in the Financing Commitments delivered to Seller prior this Agreement to the date hereof. Purchaser “Debt Financing Commitment” shall be deemed to include the Debt Financing Commitment to the extent so amended, restated, supplemented, replaced, substituted or modified (including any Alternative Debt Financing Documents to the extent then in effect) and SigmaTEK have fully paid (C) any and all commitment fees reference in this Agreement to “Fee Letter” shall be deemed to include any Fee Letter relating to the Debt Financing Commitment to the extent so amended, restated, supplemented, replaced, substituted or other fees modified (including in connection with the any Alternative Debt Financing Commitments that are payable on or prior Documents to the date hereof. As of the date hereof, the Financing Commitments are extent then in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equityeffect)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated hereby.
Appears in 1 contract
Financing. (a) As Parent shall use its reasonable best efforts to, and shall use its reasonable best efforts to cause its Affiliates to, consummate the Financing, or any Substitute Financing, in each case on the terms and conditions thereof (as the same may be amended in accordance with the terms of this Section 5.04 and including any “market flex” provisions thereof) as promptly as possible following the date hereofof this Agreement (and, Purchaser has delivered to Seller true and correct copies of (i) the executed commitment letterin any event, dated as of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) and the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on no later than the Closing Date), as may including (i) (1) maintaining in effect the Debt Letters and complying with all of their respective obligations thereunder and (2) negotiating, entering into and delivering definitive agreements with respect to the Financing reflecting the terms contained in the Debt Letters (including any “market flex” provisions thereof) (or with other terms agreed by Parent and the Financing Parties, subject to the restrictions on amendments of the Debt Letters set forth below), so that such agreements are in effect no later than the Closing, and (ii) satisfying on a timely basis all the conditions to the Financing and the definitive agreements related thereto that are applicable to Parent and its Affiliates that are within their control.
(b) In the event that all conditions set forth in Sections 7.01 and 7.03 have been satisfied or waived or, upon funding shall be amended satisfied or modified waived, Parent and its Affiliates shall use their reasonable best efforts to cause the Persons providing the Financing (such Persons, or any other financing sources and counterparties to any new or replacement financing, including any Substitute Financing, entered into in accordance with the terms hereof, collectively, the “Financing CommitmentsParties”), pursuant ) to which fund the Financing Sources party thereto have committedin accordance with its terms on the Closing Date, subject to the terms and conditions set forth therein, extent the proceeds thereof are required to lend consummate the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity Merger and the other transactions contemplated hereby, and to enforce its rights under the Debt Letters in the event of any breach by this Agreement the Financing Parties of their funding obligations thereunder. Parent shall not, and paying the related fees and expenses specified herein (such portionshall cause its Affiliates not to, the “Financing”). None take or refrain from taking, directly or indirectly, any action that would reasonably be expected to result in a failure of any of the Financing Commitments has been amended conditions contained in the Debt Letters or modified prior in any definitive agreement related to the Financing.
(c) Parent shall keep the Company reasonably informed on a current and timely basis of the status of Parent’s efforts to obtain the Financing and to satisfy the conditions thereof, including advising and updating the Company, in a reasonable level of detail, with respect to status, proposed closing date and material terms of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent definitive documentation related to the availability of the Financing, and, as providing copies of substantially final drafts of the date credit agreement and other primary definitive documents (provided, that any fee letter may be redacted) and giving the Company prompt notice of this Agreement, no such amendment any material breach or modification is contemplated default (other than, for the avoidance of doubt, amendments or alleged or purported material breach or default) by any party to the draft credit agreement contemplated therebyDebt Letters of which Parent has become aware or any termination or repudiation (or alleged or purported termination or repudiation) of the Debt Letters.
(d) Parent may amend, and amendments modify, terminate, assign or joinders agree to any waiver under the Financing Commitments solely Debt Letters (including to add lenders, lead arrangers, agents, bookrunners, syndication agents or similar entities as parties thereto who had not executed managers and other financing sources) without the Financing Commitments as prior written approval of the date hereof), and as of the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect.
(b) Except for fee letters (complete copies of which have been provided to SellerCompany; provided, howeverthat Parent shall not, that without Company’s prior written consent, permit any such fee letter may redacted as amendment, modification, assignment, termination or waiver to economic and “flex” termsbe made to, none or consent to any waiver of, any provision of or remedy under the Debt Letters which would (1) reduce the aggregate amount of the Financing (including by increasing the amount of fees to be paid or original issue discount unless Parent has available cash to fund any additional fees or original issue discount without affecting Parent’s ability to pay the Merger Consideration), other than such reductions in an amount equal to the aggregate amount of
(i) any debt or equity financing (including equity forward arrangements) obtained by the Parent or its Subsidiaries, (ii) any increase of the commitments under the existing revolving credit facilities of the Parent and its Subsidiaries, (iii) any commercial paper issuances by the Parent or its Subsidiaries and (iv) proceeds of any asset sales of the Parent and its Subsidiaries, in each case, to the extent such event occurs, (w) such event does not result in a mandatory reduction of the amount of the Financing under the terms of the Debt Letter (it being understood and agreed that any such mandatory reduction pursuant to the terms of the Debt Letter shall not be deemed to be funded on the Closing Date an amendment, modification, assignment, termination or adversely affect the conditionality or availability waiver of the Financing contemplated thereby on Debt Letter subject to the Closing Dateterms of this Section 5.04(d)), as (x) the cash proceeds of the date hereof there any such event are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable received by Parent on or prior to the date hereof. As of Effective Date or will be available to Parent on the date hereof, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there Effective Date on conditions that are no more onerous than the conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Debt Letter, (y) solely with respect to any reduction pursuant to clause (ii) above, such increase of the commitments under the existing revolving credit facilities of the Parent or its Subsidiaries shall be accompanied by a waiver of the financial covenant set forth in Section 7.2(a) of the existing revolving credit agreement of the Parent or such Subsidiary, as applicable, and (z) Parent intends to use such cash proceeds to pay its obligations under this Agreement in lieu of proceeds from the Financing Commitment Documents delivered to Seller prior contemplated by the terms of the Debt Letters, (2) impose new or additional conditions to the date hereof. As Financing or (3) otherwise expand, amend, modify or waive any provision of the date hereof, no event has occurred which, with or without notice, lapse of time or both, Debt Letters in a manner that in any such case would reasonably be expected to (iA) constitute a default delay or breach on make less likely the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability funding of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied Financing) on the Closing Date. Purchaser affirms that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated hereby.,
Appears in 1 contract
Sources: Merger Agreement
Financing. Parent has received binding written commitments --------- (athe "Equity Commitments") As from its stockholders to contribute equity capital to ------------------ the Parent in the aggregate amount of $273,200,000 plus additional amounts necessary to fund the Additional Amount (if any) hereunder and Sub has received from Parent a binding written commitment from Parent that Parent will immediately thereafter contribute the Equity Commitments to Sub. The Equity Commitments include an unconditional commitment from each of the Parent Stockholders that an aggregate of $100,000,000 will be contributed to Parent, whether or not the Merger is consummated, to satisfy the obligations of Parent and Sub hereunder, including without limitation, claims made as a result of any breaches by Parent or Sub of the terms of this Agreement. Parent and Sub have or have access to the funds, or have, at the date hereof, Purchaser has delivered binding written commitments from responsible financial institutions to Seller true provide Parent or Sub with the funds (the "Debt Commitment Letters") necessary, together with the ------------------------- Equity Commitments, to consummate the Merger and the other Transactions and to provide working capital for the business of the Company, and to consummate the Transactions, including the payment of related fees and expenses. True and correct copies of (i) all such financing commitments have previously been furnished to the executed commitment letter, dated as Company along with letters from each of Parent Stockholders stating that the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) and the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents Company may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded rely on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), Equity Commitments as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject if they were addressed to the terms and conditions set forth therein, to lend the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portion, the “Financing”). None of the Financing Commitments has been amended or modified prior to the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, as of the date of this Agreement, no such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereofCompany. As of the date hereof, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each none of the other parties thereto (except, in each case, as such enforceability may be limited Equity Commitments or commitments represented by applicable bankruptcy, insolvency, reorganization, moratorium the Debt Commitment Letters has been withdrawn and Parent and Sub do not know of any facts or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of circumstances existing at the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents hereof that would impair the availability of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to contained in the Financing contemplated by the Financing Commitments applicable to it will Debt Commitment Letters not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated herebybeing satisfied.
Appears in 1 contract
Sources: Merger Agreement (Black Leon D)
Financing. Parent has delivered to the Company true, complete and accurate fully executed copies of (a) As of the date hereofa debt commitment letter (including any amendments thereto to add lenders, Purchaser has delivered to Seller true and correct copies of (i) the arrangers, bookrunners, syndication agents or similar entities that have not executed commitment letter, dated such letter as of the date hereof, the “Debt Commitment Letter”), among Purchaser, SigmaTEK Systems, LLC the lenders party thereto (the “SigmaTEKLenders”) and Parent, (b) the Financing Sources thereto related fee letter (the “Fee Letter,” and together with the Debt Commitment Letter, the “Debt Letters”) redacted in a customary manner solely with respect to all fees, syndication hold levels and all flex items, which redacted information does not adversely affect the amount, availability or conditionality of the funding of the Debt Financing, in each case, including all exhibits, schedules, annexes and annexes theretoamendments to such letters in effect as of the date hereof, pursuant to which and subject to the executed fee letter associated therewith terms and referenced conditions thereof, the Lenders have committed to lend the amounts set forth therein (collectivelythe provision of such funds as set forth therein, the “Financing Commitment DocumentsDebt Financing”) for the purposes set forth in such Debt Commitment Letter and (provided, however, that such Financing c) the Equity Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance Letter (together with the terms hereof, collectivelyDebt Letters, the “Financing CommitmentsCommitment Letters”), between the Guarantors and Parent, pursuant to which the Financing Sources Guarantors have committed to invest the amounts set forth therein in connection with the transactions contemplated herein (the “Equity Financing” and together with the Debt Financing, the “Financing”). The Equity Commitment Letter provides that the Company is an express third-party thereto have committedbeneficiary thereof and Parent and the Guarantors will not oppose the granting of an injunction, specific performance or other equitable relief in connection with the exercise of such third-party beneficiary rights, in each case subject to the terms and conditions set forth therein, to lend in the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portionCommitment Letter. Except as permitted under Section 7.14(a), the “Financing”). None of the Financing Commitments has Commitment Letters (i) have not been amended amended, restated or otherwise modified or waived prior to the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, as of the date execution and delivery of this Agreement, and the respective commitments contained in the Commitment Letters have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement and (ii) to the Knowledge of Parent, no such amendment withdrawal, rescission, amendment, restatement, modification or modification waiver is contemplated (other thanthan any such amendment, for the avoidance of doubtmodification, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely restatement to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had have not executed the Financing Commitments Commitment Letters as of the date hereof), and as . As of the date of this Agreement Agreement, the commitments contained Commitment Letters are in full force and effect and constitute the Financing Commitments have not been withdrawn or rescinded legal, valid and binding obligation of each of Parent and, to the Knowledge of Parent, the other parties thereto, subject in any respect.
(b) Except for fee letters (complete copies each case to bankruptcy laws and similar laws affecting creditors’ rights and general principles of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there equity. There are no side letters conditions precedent or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions contingencies to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior pursuant to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereof, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the FinancingCommitment Letters, other than as expressly set forth in the Financing Commitment Documents delivered Letters. At the Closing and assuming the full funding of the Financing, Parent and Merger Sub will have sufficient funds to Seller prior pay all of Parent’s and Merger Sub’s obligations under this Agreement, including the payment of the aggregate Merger Consideration and all fees and expenses required to be paid in connection therewith. To the date hereof. As Knowledge of Parent, as of the date hereofof this Agreement, no event has occurred or circumstance exists which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a breach or default or breach on the part of SigmaTEK or Purchaser Parent under the Commitment Letters or otherwise result in any portion of the Financing Commitment Documents to be unavailable. As of the date of this Agreement, there are no side letters or other agreements or Contracts that would impair could affect the availability of the Debt Financing on the Closing Date other than as expressly set forth in the Commitment Letters. Parent has paid in full any and all commitment fees and other fees required to be paid on or prior to the date hereof under the terms of the Commitment Letters and will pay all other commitment fees and other fees as required to be paid as a condition to funding the Financing under the terms of the Commitment Letters on or prior to the Closing. As of the date of this Agreement, Parent (A) is not aware of any fact, event or other occurrence that makes any of the representations or warranties of Parent in any of the Commitment Letters that constitutes a condition precedent to the funding of the Financing on the Closing Date, Date inaccurate in any material respect and (iiB) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the Company’s representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the this Agreement and performance by Seller Company of its obligations under this Agreement and hereunder, has no reason to believe that, subject to the satisfaction of the other conditions precedent set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it Commitment Letters will not be satisfied on a timely basis or that the Financing contemplated by the Commitment Letters will not be made available on the Closing Date. Purchaser affirms that it is Notwithstanding anything to the contrary contained herein, a breach of this representation and warranty shall not result in the failure of a condition precedent to the Closing or any of its other Company’s obligations under this Agreement that Purchaser obtains Agreement, if (notwithstanding such breach) Parent and Merger Sub are willing and able to consummate the Financing or any other financing for or related to any of Merger on the transactions contemplated herebyClosing Date.
Appears in 1 contract
Financing. (a) As Purchaser shall be entitled to encumber the Hotels or any of them with one or more Authorized Mortgages which are expressly subordinate to this Agreement or in connection with which the date hereof, Purchaser has delivered to Seller true following terms and correct copies of conditions are satisfied:
(i) the executed commitment letterloan or other debt secured by such Authorized Mortgage shall not be cross-collateralized with other property or hotels which are not managed or franchised by Manager, dated as IHG or their respective Affiliates;
(ii) the principal amount secured by such Authorized Mortgage shall not exceed the sum of seventy five percent (75%) (or, if less than four (4) Pooled FF&E Hotels secure such principal amount, sixty five percent (65%)) of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) and the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount sum of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject to the terms and conditions set forth therein, to lend the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portion, the “Financing”). None of the Financing Commitments has been amended or modified prior to the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, fair market value as of the date of this Agreement, no the granting of such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as Authorized Mortgage of the date hereof), Pledged Hotels and the other properties securing such principal amount;
(iii) as of the date of the granting of such Authorized Mortgage, the Debt Service Coverage Ratio associated with such loan or debt secured thereby shall not be less than (i) 1.4 if fewer than four (4) Pooled FF&E Hotels secure such loan or other debt or (ii) 1.3 if four (4) or more Pooled FF&E Hotels secure such loan or other debt; and
(iv) the holder of such Authorized Mortgage shall execute and deliver to Manager (Manager agreeing to likewise execute and deliver to such holder) a so-called subordination, non-disturbance and attornment agreement which shall provide that:
(A) this Agreement and Manager's rights hereunder are subject and subordinate to the commitments contained Authorized Mortgage, the lien thereof, the rights of the holder thereof and to any and all advances made thereunder, interest thereon or costs incurred in connection therewith;
(B) so long as this Agreement is in full force and effect and there exists no Manager Default which has not been cured within any applicable notice or grace period, Manager's rights under this Agreement shall not be disturbed by reason of such subordination or by reason of foreclosure of such Authorized Mortgage or receipt of deed in lieu of foreclosure;
(C) Manager shall attorn to the holder or the purchaser at any such foreclosure or the grantee of any such deed (each, a "Successor Purchaser");
(D) in the Financing Commitments have event of such attornment, the terms of this Agreement binding on Purchaser and Manager shall continue in full force and effect as a direct agreement between such Successor Purchaser and Manager, upon all the terms, conditions and covenants set forth herein, except that the Successor Purchaser shall not been withdrawn be (1) bound by any payment of Owner's Fixed Priority, Owner's Percentage Priority or rescinded the Residual Distribution in advance of when due; (2) bound by any amendment or modification of this Agreement made after the date that Manager first had written notice of such Authorized Mortgage without the consent of the holder thereof; (3) liable in any respectway to Manager for any act or omission, neglect or default on the part of Purchaser or Owner under this Agreement; (4) obligated to perform any work or improvements to be done by Purchaser or Owner or to make any advances except for those advances to be made pursuant to SECTION 5.2(c) from and after the date on which such Successor Purchaser acquired the Hotel(s); or (5) subject to any counterclaim or setoff which theretofore accrued to Manager against Purchaser or Owner;
(E) In the event of a casualty or condemnation affecting any Pledged Hotel which does not result in the termination of this Agreement with respect to such Pledged Hotel, the net insurance proceeds or Award shall be applied to the restoration of such Hotel as herein provided; and
(F) Such other terms as are customary for similar agreements.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce In the amount event less than all of the Financing Hotels are to secure the loan or other debt secured by an Authorized Mortgage, Owner shall have the right to cause the Pledged Hotels to be funded managed pursuant to a separate management agreement which agreement shall be for a term equal to the unexpired portion of the Term and otherwise on substantially the same terms of this Agreement except as otherwise provided herein, provided that the Pledged Hotels in the aggregate and the remaining Hotels in the aggregate shall have Priority Coverage Ratios for the 12-month period ending on the Closing Date or adversely affect the conditionality or availability last day of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller month next prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees on which such Authorized Mortgage is granted equal to each other or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereof, the Financing Commitments are in full force and effect with respect equal to, and are the legalor greater than, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated hereby1.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Hospitality Properties Trust)
Financing. (a) As of the date hereof, Purchaser has delivered to Seller true On and correct copies of (i) the executed commitment letter, dated as of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) and the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject to the terms and conditions set forth thereinhereof, each Investor hereby grants to lend the amounts set forth thereinIssuer certain options (collectively, the “Put Options”) to require the Investors to purchase New Notes in an aggregate principal amount equal to the Purchase Price (a portion of “Purchase”), which shall be used for issued with New Warrants (as more particularly described in Section 2.03(f)), at such times as set forth in, and subject to the purposes of funding terms and conditions of, this Agreement.
(b) On or before the purchase first (1st) Business Day after the expiration date of the Purchased Equity Exchange Offers, the Issuer shall notify the Investors in writing of either (i) the election of the Issuer to require the Investors to purchase New Notes by payment by each Investor of its Cash Elections Purchase Amount, which election shall include a true and accurate calculation of the Cash Elections Purchase Price (including a certification from the applicable exchange or tender agent as to the aggregate principal amount of Existing Notes that have been tendered for repurchase) (the “Cash Elections Purchase Notice”), it being understood and agreed that the Put Option in respect of the Cash Elections Purchase Price shall automatically and irrevocably be deemed to have been exercised by the Issuer, without the need for delivery of written notice or the taking of any other transactions contemplated further action by the Issuer, the Company or any other Person, if the conditions set forth in Section 7.01 shall have been satisfied or waived in accordance with this Agreement or (ii) in the event that (a) no Cash Elections have been made in connection with the Exchange Offers on or prior to the expiration thereof, and paying (b) all Existing Notes have been tendered and not withdrawn in the related fees and expenses specified herein Exchange Offers on or prior to the expiration thereof, that the Issuer’s Put Options to require the Investors to purchase New Notes hereunder are not being exercised (such portion, the “FinancingSatisfaction Notice”). None Each Investor shall purchase New Notes in an aggregate principal amount equal to its Cash Elections Purchase Amount referred to in clause (i) in the immediately preceding sentence (the “Cash Elections Purchase”) on the Closing Date.
(c) From time to time, an Affinion Party may elect, in its sole discretion, to consummate an Optional Refinancing; provided that (x) no Affinion Parties shall have any obligation to consummate any Optional Refinancing and (y) the Put Options with respect to any such Optional Refinancing will only be exercised by, and the Financing will only be available to, the Issuer if the following conditions are satisfied or waived in accordance with this Agreement:
(i) with respect to any series of Existing Notes subject to a proposed Optional Redemption, at least 90% of the Financing Commitments has been amended or modified prior to aggregate principal amount of such series of Existing Notes that was outstanding on the date of this Agreement was exchanged or tendered for cash in any manner that would adversely impact the availability of, applicable Exchange Offer; and
(ii) on or add additional conditions precedent before the first (1st) Business Day after the delivery by the applicable Affinion Party of a notice of optional redemption to the availability holders of the Financingapplicable series of Existing Notes evidencing the consummation of an Optional Refinancing with respect to such series of Existing Notes, and, as such Affinion Party shall notify the Investors in writing of the date election of this Agreement, no such amendment or modification is contemplated (other than, for Affinion Party to require the avoidance Investors to purchase New Notes by payment by each Investor of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereof, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on in the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability case of the Financing on the Closing DateOptional AGI Notes Refinancing, its Optional AGI Notes Refinancing Purchase Amount, (ii) constitute in the case of the Optional Holdings Notes Refinancing, its Optional Holdings Notes Refinancing Purchase Amount and (iii) in the case of the Optional Investments Notes Refinancing, its Optional Investments Notes Refinancing Purchase Amount, which election shall include a failure true and accurate calculation of the Optional Refinancings Purchase Price (including a certification as to the aggregate amount payable in connection with such Optional Refinancing) (each, an “Optional Refinancing Purchase Notice” and, together with the Cash Elections Purchase Notice, the “Purchase Notices”) if the conditions set forth in Section 7.01 shall have been satisfied or waived in accordance with this Agreement. Without limiting the foregoing, in the event the applicable Affinion Party intends to satisfy a condition precedent and discharge the applicable indenture on the date that notice of optional redemption is given to the availability holders of a series of Existing Notes, the Affinion Parties shall give the Investors at least two Business Days’ prior written notice of such optional redemption. So long as the conditions in clauses (i) and (ii) above have been satisfied or waived in accordance with this Agreement, each Investor shall purchase New Notes in an aggregate principal amount equal to its applicable Optional Refinancings Investor Purchase Amount referred to in the immediately preceding sentence (the applicable “Optional Refinancings Investor Purchase”) on the applicable Subsequent Funding Date.
(d) Each Investor hereby agrees to take all action and execute and deliver all documents required to execute its Purchase and exercise all its obligations as a purchaser of New Notes through the earliest to occur (i) the delivery of the Financing Satisfaction Notice, (ii) the date on which the part Exchange Offers and all of SigmaTEK or Purchaser orthe Optional Refinancings are consummated, (iii) the date on which the Affinion Parties notify the Investors of their intention not to exercise their right to redeem the knowledge remaining Existing Notes outstanding following the consummation of Purchaser, result in the Financing being unavailable on Exchange Offer and (iv) the date that is 90 days following the Closing Date, so long as Date (the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV earliest such that the condition set forth in Section 8.2(a) is satisfieddate, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing “Termination Date. Purchaser affirms that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated hereby”).
Appears in 1 contract
Financing. If any Grantor shall be subject to any Insolvency Proceeding and either Senior Agent consents to the use of post-filing/post-petition cash receipts or “cash collateral” (aas such term is defined in Section 3 63(a) As of the date hereof, Purchaser has delivered to Seller true and correct copies of (iBankruptcy Code) the executed commitment letter, dated as of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) and the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing CommitmentsCash Collateral”), on which such Senior Agent has a Lien or to permit any Grantor to obtain financing provided by any one or more Senior Claimholders under Section 364 of the Bankruptcy Code, any similar Bankruptcy Law or pursuant to which the Financing Sources party thereto have committedan order granted in any Insolvency Proceeding granting a priority DIP lender’s or interim financing charge (such financing, a “DIP Financing”), then Junior Agent agrees that, subject to the terms and conditions set forth thereinin Section 6.5(b), it will consent to lend the amounts set forth thereinsuch Cash Collateral use and will not be entitled to raise (and will not raise or support any Person in raising), a portion of which but instead shall be used for the purposes of funding the purchase of the Purchased Equity deemed to have hereby irrevocably and the other transactions contemplated by this Agreement absolutely waived, any objection, and paying the related fees and expenses specified herein (such portion, the “Financing”). None of the Financing Commitments has been amended or modified prior to the date of this Agreement shall not otherwise in any manner be entitled to oppose or will oppose or support any Person in opposing, such Cash Collateral use or such DIP Financing (including, except as provided below (including, without limitation, in Section 6.5(b)), any claim that would adversely impact the availability ofJunior Claimholders are entitled to Adequate Protection on account of their interests in the Junior Collateral as a condition thereto) and, to the extent the Liens securing the Senior Lien Obligations are discharged, subordinated to, or add additional conditions precedent pari passu with such DIP Financing, Junior Agent will subordinate its Liens in the Collateral to the availability Liens securing such DIP Financing; provided that Junior Agent may object to such DIP Financing if (a) the sum of (i) the Financingmaximum aggregate principal amount of Indebtedness that may be outstanding from time to time under such DIP Financing plus, andwithout duplication, as (ii) the aggregate principal amount of loans and the date aggregate face amount of this AgreementLetters of Credit issued but not reimbursed under the Senior Credit Agreements (after giving effect to any closing with respect to such DIP Financing following the final hearing in respect thereof) exceeds the sum of (A) the Senior Lien Obligations Cap, no such amendment or modification is contemplated plus (other thanB) $20,000,000, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as Cash Collateral use or DIP Financing compels any Grantor to economic and “flex” terms, none seek confirmation of a specific Plan of Reorganization for which would reduce the amount all or substantially all of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there material terms are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Cash Collateral order or DIP Financing Commitments delivered documentation, (c) the terms of such DIP Financing or Cash Collateral use require any Grantor to Seller prior seek approval for any Plan of Reorganization that is not a Conforming Plan of Reorganization, or (d) the terms of such DIP Financing require such Junior Claimholders to extend additional credit pursuant to such DIP Financing. Junior Agent agrees that it shall not, directly or indirectly, provide, offer to provide, or support any DIP Financing secured by a Lien senior to or pari passu with the date hereofLiens securing the Senior Lien Obligations without the consent of Senior Agents. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees If, in connection with the Financing Commitments that are payable on any Cash Collateral use or prior to the date hereof. As of the date hereof, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the DIP Financing, other than as expressly set forth in any Liens on the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected Collateral held by Senior Claimholders are subject to (i) constitute a default surcharge or breach on are subordinated to an administrative priority claim, a professional fee “carve out,” or fees owed to the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing DateUnited States Trustee, (ii) constitute a failure court ordered priority administration charge to satisfy a condition precedent to the availability secure fees and expenses of the Financing on Grantor’s legal counsel and other professionals, the part of SigmaTEK monitor and its legal counsel and other professionals or Purchaser or, (iii) a court ordered priority directors’ and officers’ charge to secure indemnities given by the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, Grantors to their respective directors and officers and so long as the conditions amount of such surcharge, claim, carve out, fees administration or directors’ and officers charge is reasonable under the circumstances, then the Liens on the Collateral of Junior Claimholders shall also be subordinated to such interest, claim, administration charge or directors’ and officers’ charge and shall remain subordinated to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied Liens on the Closing Date. Purchaser affirms that it is not a condition to the Closing or any Collateral of its other obligations under Senior Claimholders consistent with this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated herebyAgreement.
Appears in 1 contract
Financing. (a) As of Within 60 days after the date hereof, Purchaser has delivered Parent and Merger Sub shall deliver to Seller the Company true and correct complete copies of (i) the a fully executed commitment letterletter (the “Debt Commitment Letter”), dated as of except for any fee letters, pursuant to which the date hereoffinancial institutions party to such Debt Commitment Letter shall have committed upon the terms and subject to the conditions set forth therein, among Purchaserto provide, SigmaTEK Systemsor cause to be provided, LLC debt financing in the amount set forth therein in connection with the Merger and (ii) a fully executed commitment letter (the “SigmaTEKEquity Commitment Letter”) and the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and together with the executed fee letter associated therewith and referenced therein (collectivelyDebt Commitment Letter, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing CommitmentsLetters”), pursuant to which the Financing Sources investors party thereto shall have committed, upon the terms and subject to the terms and conditions set forth therein, to lend provide, or cause to be provided, equity financing in the amounts aggregate amount set forth thereintherein in connection with the Merger. The Financing Letters shall reflect debt and equity commitments from such equity investors and financial institutions, a portion which together with any equity to be issued in connection with the Contribution and Exchange Agreements or to be issued in exchange for securities of which Parent, shall be used for sufficient to pay the purposes full Merger Consideration (and all other cash amounts payable pursuant hereto), and all of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein payable by Parent or Merger Sub (such portionor, after the Closing, the Surviving Corporation) in connection with the Merger (the funds necessary to pay the foregoing amounts, the “Financing”). None Notwithstanding anything in this Agreement to the contrary, one or more Financing Letters may be superseded at the option of the Financing Commitments has been amended or modified Parent and Merger Sub prior to the date Effective Time by instruments (the “New Financing Letters”) which replace existing Financing Letters and/or contemplate co-investment by or financing from one or more other or additional parties; provided that the terms of this Agreement in any manner that would adversely impact the availability of, or add additional New Financing Letters shall not (a) expand upon the conditions precedent to the availability of the Financing, and, Financing as of the date of this Agreement, no such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered Letters in any respect that would make such conditions less likely to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereofbe satisfied, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would b) reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to delay the Closing or (c) otherwise have an adverse impact on the Company at any of its other obligations under this Agreement time that Purchaser obtains is prior to the Closing. In such event, the term “Financing Letters” as used herein shall be deemed to include the Financing or any other financing for or related Letters that are not so superseded at the time in question and the New Financing Letters to any of the transactions contemplated herebyextent then in effect.
Appears in 1 contract
Sources: Merger Agreement (CKX, Inc.)
Financing. (a) As of Acquiror, Panavision Acquisition Sub and SIM Acquisition 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 arrange and obtain the date hereof, Purchaser has delivered to Seller true and correct copies of (i) the executed commitment letter, dated as of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) Debt Financing and the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded PIPE Investment on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject to the terms and conditions set forth therein, to lend described in the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity applicable Debt Commitment Letters and the other transactions contemplated PIPE Documents, as applicable, including using reasonable best efforts to (i) maintain in effect the Debt Commitment Letters and the PIPE Documents, (ii) satisfy (or obtain the waiver of, if deemed advisable by this Agreement Acquiror) on a timely basis all conditions to the extent the satisfaction of such conditions requires the cooperation of or is within the control of Acquiror, Panavision Acquisition Sub or SIM Acquisition Sub (or their Affiliates) in the Debt Commitment Letters and paying any definitive documentation relating to the related fees Debt Financing and expenses specified herein (such portionthe PIPE Documents, the “Financing”). None as applicable, as of the Financing Commitments has been amended or modified prior to the date of this Agreement in Closing, (iii) negotiate and enter into definitive agreements with respect thereto on the terms and conditions contemplated by the applicable Debt Commitment Letters (including any manner related flex provisions) and the PIPE Documents or on other terms that would adversely impact the availability ofnot be prohibited by Section 9.4(d), or add additional conditions precedent (iv) to the availability of extent the Financingconditions to closing set forth in the Debt Commitment Letters or the applicable PIPE Documents are satisfied or waived, andconsummate the Debt Financing and the PIPE Investment, as of applicable, at the date of Closing, (v) comply with their obligations under the Debt Commitment Letters and the PIPE Documents and (vi) enforce their rights under the Debt Commitment Letters and the PIPE Documents; provided, that, notwithstanding anything to the contrary in this Section 9.4 or otherwise in this Agreement, no such amendment all Acquiror Common Shares issued at the Closing pursuant to the PIPE Documents or modification is the Alternative Financing contemplated by Section 9.4(c) shall be issued at a price per share equal to or greater than $10.00 per share.
(b) Acquiror shall give each of the Companies and the Holder Representatives prompt (and in any event, within two (2) Business Days) written notice (i) of any breach or default by any party to any Debt Commitment Letters or any definitive agreement with respect to the Debt Financing (the “Debt Documents”) or the PIPE Documents, in each case, of which Acquiror, Panavision Acquisition Sub or SIM Acquisition Sub becomes aware, (ii) if and when Acquiror, Panavision Acquisition Sub or SIM Acquisition Sub becomes aware that any portion of the Debt Financing contemplated by the Debt Commitment Letters or the PIPE Investment contemplated by the PIPE Documents may not be available to consummate the Transactions, (iii) of the receipt of any written notice or other thanwritten communication from any Person with respect to any (A) actual or potential breach, default, termination or repudiation by any party to any Debt Commitment Letter, other Debt Document or PIPE Document or (B) material dispute or disagreement between or among any parties to any Debt Commitment Letter, other Debt Document or PIPE Document (but excluding, for the avoidance of doubt, amendments any ordinary course negotiations with respect to the draft credit agreement contemplated therebyterms of the Debt Financing, the PIPE Investment, the Debt Documents or the PIPE Documents, as applicable), and amendments (iv) if for any reason any portion of the Debt Financing or joinders the PIPE Investment required for Acquiror to make all payments required by it under this Agreement on the Closing Date becomes unavailable on the terms and conditions contemplated in any Debt Commitment Letters (including flex terms) (or on other terms that would not be prohibited by Section 9.4(d)) or the PIPE Documents, as applicable. As soon as reasonably practicable, but in any event, within two (2) Business Days following delivery by Panavision to Acquiror of written request therefor, Acquiror shall provide any information reasonably requested by Panavision relating to any circumstance referred to in clause (i), (ii), (iii) or (iv) of the immediately preceding sentence; provided, that in no event will Acquiror be under any obligation to disclose any information that is (x) subject to the terms of a confidentiality agreement with a third Person (excluding, for the avoidance of doubt, any such terms in a confidentiality agreement with Sponsor or any of its Affiliates) or (y) subject to any attorney-client privilege to the extent that Acquiror determines that the disclosure of such information would reasonably be likely to result in a loss of such privilege; provided, further, that if any information is withheld pursuant to the immediately preceding proviso, Acquiror will (x) inform each of the Companies and the Holder Representatives as to the general nature of what is being withheld and (y) use its reasonable best efforts (1) to accommodate any request from any of the Companies or the Holder Representatives for information pursuant to this Section 9.4(b) in a manner that does not result in such a violation or waiver or (2) to obtain the required consent of such third Person to permit such access or disclosure. Without limiting the foregoing, Acquiror, Panavision Acquisition Sub and SIM Acquisition Sub shall keep the Companies and the Holder Representatives informed in reasonable detail on a reasonably current basis of the status of their efforts to arrange and consummate the Debt Financing Commitments solely and the PIPE Investment (including any Alternative Financing), and shall provide to such Company copies of (x) the drafts of the material definitive documents related to the Debt Financing or the PIPE Investment prior to distribution of such drafts to the applicable Debt Financing Sources or the PIPE Investors (or, in each case, their counsel) (it being agreed that Panavision and its Representatives shall have the right to review and provide comments to Acquiror on any such draft material definitive documents related to the Debt Financing or the PIPE Investment and Acquiror shall consider, in good faith, any such comments proposed by Panavision or any of its Representatives and any such comments promptly and reasonably proposed shall be included in drafts thereafter provided by Acquiror or its counsel) and (y) executed copies of the definitive documents related to the Debt Financing and the PIPE Investment.
(c) If all or any portion of the Debt Financing or the PIPE Investment required by Acquiror to make all payments required by it under this Agreement on the Closing Date becomes unavailable on the terms and conditions described in the applicable Debt Commitment Letters (including flex terms) (or on other terms that would not be prohibited by Section 9.4(d)) or the PIPE Documents, as applicable, Acquiror, Panavision Acquisition Sub and SIM Acquisition Sub shall use reasonable best efforts to arrange and obtain alternative financing, including from alternative sources, in an amount sufficient (when added to the portion of the Debt Financing and the PIPE Investment that is available and other available funds) to consummate the Transactions on the Closing Date (“Alternative Financing”) as promptly as practicable following the occurrence of such event but no later than the Closing Date (i) on terms not materially less favorable (including with respect to conditionality, to the availability and funding of any Debt Financing) from the standpoint of Acquiror, Panavision Acquisition Sub, SIM Acquisition Sub and the Affiliates of Acquiror, Panavision Acquisition Sub and SIM Acquisition Sub party thereto and the Company Groups than those in the applicable Debt Commitment Letters or the PIPE Documents, as applicable (and, in the case of the Debt Commitment Letters, taking into account the flex provisions), and (ii) containing conditions and other terms that would reasonably be expected to affect the availability of the Alternative Financing that (A) are not more onerous, taken as a whole, than those conditions and terms contained in the Debt Commitment Letters or the PIPE Documents, as applicable, as of the date hereof, (B) would not reasonably be expected to delay, impede or prevent the Closing and (C) do not adversely affect the ability of Acquiror or the Panavision Holder Representative (in the case of the PIPE Documents) to enforce its rights against other parties to the Alternative Financing (including all definitive documentation) relative to the ability of Acquiror to enforce its rights against the other parties to the Debt Commitment Letters or the PIPE Documents, as applicable, as in effect on the date hereof or in the related definitive agreements. All references to the Debt Financing or the PIPE Investment shall be deemed to include such Alternative Financing and all references to the Debt Commitment Letters, the PIPE Investment, the Debt Documents or the PIPE Documents shall include the applicable documents for the Alternative Financing. Without limiting the generality of the foregoing, after the date hereof, neither Acquiror nor any of its Affiliates shall enter into any Contract or arrangement with any PIPE investor related to the PIPE Investment without the prior written consent of the Panavision Holder Representative and the SIM Holder Representative (provided that the SIM Holder Representative may not unreasonably withhold, condition or delay its approval).
(d) Notwithstanding anything in this Agreement to the contrary, each of Acquiror, Panavision Acquisition Sub and SIM Acquisition Sub shall have the right from time to time to amend, replace, supplement or otherwise modify, or waive any of its rights under, any Debt Commitment Letters, the Debt Documents or the PIPE Documents, or replace or amend the Debt Commitment Letters to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments Debt Commitment Letters as of the date hereof), and as of the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereof, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting case only with the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As prior written consent of the date hereof, there are no conditions precedent or other contingencies related Panavision Holder Representative. All references to the funding of Debt Commitment Letters or the full amount of the FinancingPIPE Documents shall be deemed to include any new commitment letters entered into and amendments, other than as expressly set forth replacements, supplements, modifications, waivers or substitutions in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, accordance with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in this Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated hereby9.4(d).
Appears in 1 contract
Sources: Business Combination Agreement (Saban Capital Acquisition Corp.)
Financing. (a) As Subject to the terms and conditions of this Agreement, the date hereofBuyer shall use its reasonable best efforts to obtain the Financing on the terms and conditions described in the Financing Commitments, Purchaser has delivered subject to Seller true and correct copies any amendments or modifications thereto permitted by the last sentence of this Section 5.12(a), including using its reasonable best efforts to (i) maintain in effect the executed commitment letterFinancing Commitments, dated (ii) negotiate and enter into definitive agreements with respect to the Financing Commitments on terms and conditions contained therein, subject to any amendments or modifications thereto permitted by the last sentence of this Section 5.12(a), (iii) satisfy on a timely basis all conditions applicable to the Buyer contained in the Financing Commitments, including the payment of any commitment, engagement or placement fees required as a condition to the Financing and due and payable by the Buyer, (iv) comply with its obligations under the Financing Commitments, (v) fully enforce its rights under the Financing Commitments, and (vi) consummate the Financing at or prior to the Closing. Upon reasonable request of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) and the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectivelySeller, the “Financing Commitment Documents”) (Buyer shall provide such information as shall be reasonably necessary to keep the Seller informed on a reasonable basis and in reasonable detail of the status of its efforts to arrange the Financing; provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none in the event the Buyer becomes aware of which would reduce the amount 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 Commitments, the Buyer shall promptly notify the Seller and shall use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on terms and conditions no less favorable to the Buyer’s ability to consummate the Transactions. Notwithstanding anything to the contrary in this Agreement, the Buyer shall not, without the prior written consent of the Seller (such consent not to be funded on unreasonably withheld or delayed), (i) amend, modify, supplement or waive any of the Closing Date conditions to funding contained in the Financing Commitments or any other provision thereof or remedies thereunder, in each case to the extent such amendment, modification, supplement or waiver would reasonably be expected to adversely affect the conditionality ability of the Buyer to timely consummate the Transactions (including, by making the conditions therein less likely to be satisfied or availability delaying the Closing), or (ii) amend, modify, supplement or waive any of the conditions to funding contained in the Financing Commitments or any other provision thereof, or remedies thereunder.
(b) The Buyer acknowledges and agrees that the Seller and its Affiliates have no responsibility for any financing that the Buyer may raise in connection with the Transactions except as expressly contemplated by Section 5.12(c).
(c) In the period between the date hereof and the Closing Date, upon request of the Buyer, the Seller shall, and shall use reasonable efforts to cause the Companies, and its and their representatives, agents and advisors (including legal and accounting), to cooperate in connection with the arrangement and obtaining of the Financing contemplated thereby on in the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, amounts and subject to the terms and conditions set forth thereinin the Financing Commitments, pursuant to lend the amounts which the Lenders have agreed to provide the Financing; provided, that such cooperation does not unreasonably interfere with the ongoing operations of the Seller and its Subsidiaries). Seller’s cooperation shall include, without limitation: (i) providing the Buyer from time to time information regarding the Business and its industry reasonably requested by the lenders providing the Financing, (ii) using commercially reasonable efforts to ensure that the efforts to syndicate the Financing benefit from existing lending relationships of the Seller and its Subsidiaries, (iii) participating in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions with prospective lenders and sessions with rating agencies in connection with the Financing, including direct contact (to the extent consistent with their obligations to the Seller) between management and the representatives and advisors (including accounting advisors) of the Seller and its Subsidiaries, on the one hand, and the Lenders, potential lenders and investors for the Financing, on the other hand, (iv) assisting with the preparation of materials for rating agency presentations, offering and syndication documents (including prospectuses, offering memoranda, private placement memoranda and lender and investor presentations), business projections and similar marketing documents required in connection with the Financing (all such documents and materials, collectively the “Offering Documents”) and other materials to be used in connection with obtaining the Financing and all documentation and other information required by Governmental Authorities under applicable “know your customer” and anti-money laundering rules and regulations, including U.S.A. Patriot Act of 2001, (v) as promptly as reasonably practical after the Buyer’s request, furnishing the Buyer and the Lenders all Required Information, including all information and disclosures reasonably requested by the Buyer to assist with preparation of the Offering Documents, including customary authorization and management representation letters, (vi) reasonably cooperating in satisfying the conditions precedent set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portion, the “Financing”). None of in the Financing Commitments has been amended or modified prior any definitive document relating to the date Financing (to the extent the satisfaction of this Agreement in any manner that would adversely impact such condition requires the availability cooperation of, or add additional conditions precedent and is within the control of, the Seller and is customary and reasonable), (vii) issuing customary representation letters to auditors and using commercially reasonable efforts to obtain (A) accountants comfort letters and consents to the availability use of accountants’ audit reports relating to the FinancingSeller, and(B) consents and waivers and legal opinions, and (C) other documentation and items contemplated by the Financing as reasonably requested by Buyer, (viii) executing and delivering, as of the date Closing Date, any pledge and security documents, other definitive financing documents as may be reasonably requested by Buyer, and (ix) as of or subject to the occurrence of the Closing, taking all corporate actions necessary to authorize the consummation of the Financing and to permit the proceeds thereof to be made available to the Buyer immediately upon the Closing Date. Notwithstanding the foregoing, (X) neither the Seller nor any of its Affiliates shall be required to pay any commitment or other similar fee, provide any security or incur any other Liability in connection with the Financing, (Y) nothing in this AgreementSection 5.12 shall require the Seller, no such amendment the Companies or modification is contemplated their senior officers to engage in any action that would interfere unreasonably with their respective businesses and (other thanZ) the effectiveness of any Encumbrance or documentation executed by the Seller or any of its Affiliates with respect to the Financing shall be subject to the consummation of the Closing (and, for the avoidance of doubt, amendments the existence of any such Encumbrances shall not constitute a violation of any representation or warranty of the Seller in this Agreement). The Seller will use reasonable efforts to update any Required Information to be included in the Offering Document to be used in connection with such Financing as reasonably requested by Buyer. The Buyer shall promptly, upon request by the Seller, reimburse the Seller for all reasonable and documented out-of-pocket costs incurred by the Seller or any of its Subsidiaries in connection with such cooperation. For the avoidance of doubt, any information provided to the draft credit agreement contemplated thereby, and amendments or joinders Buyer pursuant to this Section 5.12(c) shall be subject to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), Confidentiality Agreement and as of the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect.
(b) Except for fee letters (complete copies of which have been provided to SellerSection 11.2; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions notwithstanding anything to the funding of the Financing contrary in this Agreement or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereofConfidentiality Agreement, the Financing Commitments are Buyer may include confidential information regarding the Business and the Companies in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, presentations to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, rating agencies so long as the conditions Buyer affords the Seller a reasonable opportunity to review and comment thereon and considers the Financing are satisfied and each condition set forth Seller’s comments in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated herebygood faith.
Appears in 1 contract
Financing. (a) As of the date hereof, Purchaser has delivered Buyer shall use its reasonable best efforts to Seller true arrange and correct copies of (i) the executed commitment letter, dated as of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) and to consummate the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), soon as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject to the terms and conditions set forth therein, to lend the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portion, the “Financing”). None of the Financing Commitments has been amended or modified prior to reasonably practicable after the date of this Agreement on the terms and conditions described in any manner the Commitment Letters (provided, that would adversely impact Buyer may replace or amend the availability of, or add additional conditions precedent to the availability of the Financing, and, as of the date of this Agreement, no such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely Commitment Letters to add lendersLenders, lead arrangers, bookrunners, syndication agents or similar entities entities, as parties thereto who applicable, which had not executed the Financing Commitments Commitment Letters as of the date hereof), and or otherwise replace or amend the Commitment Letters so long as any such replacement or amendment would not (x) expand the conditions precedent to the Financing as set forth in the Commitment Letters as of the date hereof, (y) be reasonably expected to delay the Closing or (z) reduce the aggregate amount available under the Commitment Letters below an amount that, when combined with Buyer’s other sources of funds, is sufficient to pay the Purchase Price and all related fees and expenses in connection with this Agreement and the commitments transactions contemplated hereby at the Closing), which reasonable best efforts shall include (i) negotiating definitive agreements with respect thereto on terms and conditions contained therein (the “Financing Agreements”), (ii) satisfying on a timely basis all conditions in the Commitment Letters and the Financing Commitments Agreements and (iii) to the extent necessary to pay the Purchase Price and all related fees and expenses in connection with this Agreement and the transactions contemplated hereby at the Closing taking into account Buyer’s other sources of funds, drawing upon any bridge financing provided for therein. Notwithstanding anything herein to the contrary, Buyer shall have the right from time to time to substitute other debt or equity financing for all or any portion of the Financing from the same or alternative financing sources, in each case, in a manner not been withdrawn materially less beneficial (including as to the conditions to obtaining such alternative financing) to Buyer or rescinded in any respectSeller as compared to the Commitment Letters and the Financing Agreements.
(b) Except In the event that any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Commitment Letters or the Financing Agreements, Buyer shall use its reasonable best efforts to arrange to obtain, as promptly as reasonably practicable, financing from alternative sources in an amount sufficient to consummate the transactions contemplated by this Agreement on terms not materially less favorable to Buyer than those contained in the Commitment Letters (the “Alternative Financing”) and to obtain (and, when obtained, to provide Seller with a copy of) a new financing commitment for fee letters the Alternative Financing (complete copies the “Alternative Financing Commitment Letter”). To the extent applicable, Buyer shall use its reasonable best efforts to arrange and to consummate the Alternative Financing as soon as reasonably practicable on the terms and conditions described in the Alternative Financing Commitment Letter, which reasonable best efforts shall include (i) negotiating definitive agreements with respect thereto on terms and conditions contained therein (the “Alternative Financing Agreements”), (ii) satisfying on a timely basis all conditions in the Alternative Financing Commitment Letter and the Alternative Financing Agreements, (iii) enforcing its rights under the Alternative Financing Commitment Letter and the Alternative Financing Agreements and (iv) to the extent necessary to pay the Purchase Price and all related fees and expenses in connection with this Agreement and the transactions contemplated hereby at the Closing taking into account Buyer’s other sources of which have been funds, drawing upon any bridge financing provided for therein.
(c) Buyer shall give Seller notice as promptly as reasonably practicable (and in any event within two (2) Business Days) following any breach or threatened breach or of any termination or threatened termination by any party of the Commitment Letters or the Financing Agreements and, if applicable, the Alternative Financing Commitment Letter or the Alternative Financing Agreements. Buyer shall keep Seller informed on a reasonably current basis (and at any time upon Seller’s reasonable request) in reasonable detail of the status of its efforts to Sellerarrange the Financing and, if applicable, the Alternative Financing.
(d) Prior to the Closing, Seller shall, and shall cause each of its Affiliates to, at Buyer’s sole cost and expense, take all commercially reasonable actions and do all things as reasonably requested by Buyer, that are within their control and that relate to the Business, in order to satisfy the conditions precedent to the consummation of, and funding under, and in order to comply with the terms and conditions of, the Financing or Alternative Financing, as applicable, including, if requested by Buyer, facilitating Buyer’s efforts to pledge any of the Acquired Companies’ assets as collateral (provided such pledging of collateral, for the avoidance of doubt, shall not be effective prior to the Closing); provided, however, that such actions do not unreasonably interfere with the normal operations or employee relations of Seller, any such Affiliate of Seller or the Business; and, provided, further, that Seller shall not be required to pay any commitment fee letter may redacted as or other fee or payment to economic and “flex” terms, none of which would reduce the amount of the Financing obtain consent or to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts incur any liability (other than reasonable out-of-pocket expenses subject to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions reimbursement by Buyer in accordance herewith) with respect to the funding of the Financing or Alternative Financing. Notwithstanding anything to the transactions contrary herein, except as contemplated hereby other than as expressly by Section 6.9 and except with respect to any information set forth in the Financing Commitments delivered Schedules, in no event shall Seller be obligated to Seller prior deliver any additional financial statements (audited or unaudited) relating to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees Business in connection with the Financing Commitments that are payable on or prior to Alternative Financing.
(e) Buyer acknowledges and agrees that, except as otherwise expressly provided in this Section 6.6, Seller and its Affiliates and representatives have no responsibility for any financing (including, for the date hereof. As avoidance of the date hereofdoubt, the Financing Commitments are and the Alternative Financing) that Buyer may raise in full force connection with the transactions contemplated hereby and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, shall not be requested to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions sign any authorization letter to the Financing are satisfied Sources. Seller and each condition set forth in Section 8.2 is satisfied. As its Affiliates shall not have any responsibility for any offering materials or other related documents prepared by or on behalf of the date hereofor utilized by Buyer or its Affiliates, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing Lenders or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or sources, in connection with Buyer’s financing activities related to any of the transactions contemplated hereby, including any offering memorandum, banker’s book or any other written materials used in connection with any debt or securities offering or other such financing.
(f) Notwithstanding anything contained herein to the contrary, compliance by Buyer with this Section 6.6 shall not relieve Buyer of its obligation to consummate the transactions contemplated by this Agreement whether or not the Financing is available.
Appears in 1 contract
Financing. (a) As of Parent and Merger Sub shall 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 and obtain the date hereof, Purchaser has delivered to Seller true Debt Financing described in the Debt Commitment Letters on the terms and correct copies of conditions described therein including using reasonable best efforts (i) to maintain in effect the executed commitment letter, dated as Debt Commitment Letters until the consummation of the date hereoftransactions contemplated hereby, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”ii) to negotiate and enter into definitive agreements with respect to the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein Debt Commitment Letters (collectively, the “Debt Financing Commitment DocumentsAgreements”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject to the terms and conditions set forth thereincontained in the Debt Commitment Letters or, if available, on other terms (to lend the extent they are less favorable to Parent) that are acceptable to Parent and would not adversely affect (including with respect to timing, taking into account the expected timing of the Marketing Period) the ability of Parent and Merger Sub to consummate the transactions contemplated herein, (iii) to satisfy on a timely basis all conditions to funding in the Debt Commitment Letters and Debt Financing Agreements (other than any condition where the failure to be so satisfied is a direct result of the Company’s failure to comply with its obligations under Section 7.18(b)) and to consummate the Debt Financing at or prior to the Closing, and (iv) to enforce its rights (including through litigation) under or with respect to the Debt Commitment Letters and the Debt Financing Agreements. Parent and Merger Sub shall not agree to any amendments or modifications to, or grant any waivers of, any condition or other provision under the Debt Financing Agreements without the prior written consent of the Company to the extent such amendments, modifications or waivers would reasonably be expected to (A) reduce the aggregate amount of cash proceeds available from the Debt Financing to fund the amounts set forth thereinrequired to be paid by Parent or Merger Sub under this Agreement below the amount of cash on hand at Parent and cash on hand at the Company which, a portion of which shall be used in the aggregate, is sufficient for Merger Sub and the purposes of funding Surviving Corporation to, on and after the purchase date of the Purchased Equity Closing, pay the aggregate Common Per Share Cash Amount, (B) impose new or additional conditions or otherwise be reasonably likely to prevent or delay or impair the ability of Parent or Merger Sub to consummate the Merger and the other transactions contemplated by this Agreement and paying or adversely impact the related fees and expenses specified herein ability of Parent or Merger Sub to enforce its rights (such portion, including through litigation) against the “Financing”)other parties to the Debt Commitment Letters or the Debt Financing Agreements. None Without limiting the generality of the foregoing, Parent and Merger Sub shall give the Company prompt notice (x) of any actual or alleged breach or default by any party to any of the Debt Commitment Letters or Debt Financing Commitments has been amended Agreements, (y) of the receipt of any written notice or modified 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, or (z) if Parent and Merger Sub determine in good faith that they will not be able to satisfy any of the obligations to, or otherwise be able to obtain, some or any portion of the Debt Financing prior to the date Termination Date. Upon the occurrence of this Agreement any circumstance referred to in any manner that would adversely impact the availability ofclause (x), (y) or add additional conditions precedent to the availability (z) of the Financingpreceding sentence or if any portion of the Debt Financing otherwise becomes unavailable, andand such portion is reasonably required to fund the aggregate Common Per Share Cash Amount and all fees, as expenses and other amounts contemplated to be paid by Parent, Merger Sub or the Surviving Corporation pursuant to this Agreement, Parent and Merger Sub shall use their reasonable best efforts to arrange and obtain in replacement thereof alternative financing from the same or alternative sources in an amount that, when combined with the amount of cash on hand at Parent and cash on hand at the Company, in the aggregate is sufficient for Merger Sub and the Surviving Corporation to, on and after the date of the Closing, pay the aggregate Common Per Share Cash Amount on terms and conditions not materially less favorable, in the aggregate, to the Company or Parent than the terms set forth in the Debt Commitment Letters (including the flex provisions thereof). Any reference in this Agreement to (1) the “Debt Financing” shall include any such alternative financing, (2) the “Debt Commitment Letters” shall include the commitment letters and the corresponding fee letter with respect to any such alternative financing, (3) the “Debt Financing Agreements” shall include the definitive agreements with respect to any such alternative financing and (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, nothing contained in this Section 7.18(a) shall require, and in no such amendment event shall the reasonable best efforts of Parent or modification is contemplated (other thanMerger Sub be deemed or construed to require, for the avoidance of doubt, amendments either Parent or Merger Sub to pay any fees or any interest rates applicable to the draft credit agreement Debt Financing in excess of those contemplated therebyby the Debt Commitment Letter (including the flex provisions), and amendments or joinders agree to any “market flex” term less favorable to Parent, Merger Sub or the Financing Commitments solely Surviving Company than such corresponding market flex term contained in or contemplated by the Debt Commitment Letter (in either case, whether to add lenders, lead arrangers, bookrunners, syndication agents secure waiver of any conditions contained therein or similar entities as parties thereto who had not executed otherwise). Parent shall keep the Financing Commitments as Company informed on a reasonably current basis in reasonable detail of the date hereof), and as status of its efforts to arrange the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respectDebt Financing.
(b) Except for fee letters Prior to the Closing, the Company shall use 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 the Company Representatives to provide all cooperation reasonably requested by Parent and Merger Sub that is customary or necessary in connection with arranging, obtaining and syndicating the Debt Financing and causing the conditions in the Debt Commitment Letters to be satisfied, including: (complete copies i) assisting with the preparation of which have been provided Offering Documents; (ii) preparing and furnishing to Seller; providedParent and the Debt Financing Sources as promptly as practicable with all Required Information and all other available pertinent information and disclosures relating to the Company and its Subsidiaries (including their businesses, howeveroperations, that any such fee letter financial projections and prospects) as may redacted as be reasonably requested by Parent to economic and “flex” terms, none of which would reduce the amount assist in preparation of the Financing to be funded on Offering Documents; (iii) having the Closing Date or adversely affect the conditionality or availability Company designate members of senior management of the Financing contemplated thereby on the Closing Date)Company to execute customary authorization letters with respect to Offering Documents and participate in a reasonable number of presentations, as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditionsroad shows, affect the availability of or modifydue diligence sessions, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser drafting sessions and SigmaTEK have fully paid any and all commitment fees or other fees sessions with ratings agencies in connection with the Debt Financing, including direct contact between such senior management of the Company and its Subsidiaries and the Debt Financing Commitments that are payable on or Sources and other potential lenders in the Debt Financing; (iv) assisting Parent in obtaining any corporate credit and family ratings from any ratings agencies contemplated by the Debt Commitment Letter; (v) 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; (vi) assisting in the preparation of, and executing and delivering, definitive financing documents, including guarantee and collateral documents and customary closing certificates as may be required by the Debt Financing (including a certificate of an appropriate officer of the Company with respect to solvency of the Company and its Subsidiaries as of immediately prior to the date hereof. As Effective Time to the extent required by, or necessary to satisfy conditions precedent under, the Debt Commitment Letters) and other customary documents as may be reasonably requested by Parent; (vii) facilitating the pledging of collateral for the Debt Financing; (viii) requesting from the Company’s existing lenders such customary documents in connection with re-financings as requested by Parent in connection with the Debt Financing and collateral arrangements, including customary payoff letters, lien releases, instruments of termination or discharge; (ix) furnishing Parent and the Debt Financing Sources with all documentation and other information 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); (x) assisting Parent in obtaining all documents, affidavits, estoppels and signatures required in connection with title insurance and other documentation and items relating to the Debt Financing as reasonably requested by Parent; and (xi) cooperating with Parent, and taking all corporate actions, subject to the occurrence of the date hereofEffective Time, reasonably requested by Parent to permit the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each consummation of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, Debt Financing. Parent and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller Merger Sub acknowledge and agree that prior to the date hereofEffective Time, the Company and its Affiliates and their representatives shall not have any responsibility for, or incur any liability to any Person under, any Debt Financing in connection with the transactions contemplated by this Agreement or any cooperation provided pursuant to this Section 7.18 and that Parent and Merger Sub shall, jointly and severally, indemnify and hold harmless the Company and its Subsidiaries and their respective representatives from and against any and all liabilities, losses, damages, claims, costs, expenses (including attorneys’ fees), interest, awards, judgments and penalties suffered or incurred in connection with this Section 7.18(b), except to the extent arising or resulting from such Persons’ gross negligence or willful misconduct. As Parent shall, promptly upon request by the Company, reimburse the Company for all reasonable out-of-pocket costs (including reasonable attorneys’ fees) incurred by the Company and its Subsidiaries and their respective representatives in connection with this Section 7.18(b).
(c) The Company hereby consents to the use of the date hereofCompany’s name, no event has occurred whichtrademarks and logos in connection with the Debt Financing in substantially the same manner currently being used. In connection with any Offering Document prepared by Parent and used to market any debt securities or debt financing contemplated pursuant to the Debt Commitment Letters prior to the Closing, with or without noticethe Company will, lapse upon request of time or bothParent, would reasonably be expected use its reasonable best efforts to (i) constitute periodically update any Required Information included in such Offering Document so that Parent may ensure that such Required Information, when taken as a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability whole, does not contain as of the Financing on time provided, giving effect to any supplements, any untrue statement of material fact or omit to state any material fact necessary in order to make the Closing Date, statements contained therein not materially misleading.
(iid) constitute a failure to satisfy a condition precedent to Parent and Merger Sub acknowledge and agree that the availability obtaining of the Debt Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to Closing and that, subject to Section 9.3 and Section 12.14 the Closing or any obligations of its other obligations Parent and Merger Sub under this Agreement that Purchaser obtains are not contingent in any respect upon the Financing or any other financing for or related to any funding of the transactions amounts contemplated herebyto be funded pursuant to the Debt Commitment Letters.
Appears in 1 contract
Financing. (a) As 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 or advisable to consummate the date hereofDebt Financing on the terms and conditions described in the Debt Letters, Purchaser has delivered on or prior to Seller true and correct copies of the Closing Date, including using reasonable best efforts to (i) (A) maintain in effect the executed commitment letterDebt Letters (other than as otherwise permitted by this Section 5.14) and satisfy on a timely basis all of its obligations thereunder and (B) negotiate, dated as of enter into and deliver definitive agreements with respect to the date hereof, among Purchaser, SigmaTEK Systems, LLC Debt Financing reflecting the terms contained in the Debt Letters (“SigmaTEK”) or with other terms agreed by Parent and the Financing Sources thereto (including all exhibitsSources, schedulessubject to the restrictions on amendments of the Debt Letters set forth below), and annexes thereto, (ii) satisfy on a timely basis all the conditions to the Debt Financing and the executed fee letter associated therewith definitive agreements related thereto that are applicable to Parent and referenced therein are within Parent’s control (collectively, but excluding any condition where the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may failure to be redacted as to economic and “flex” terms, none so satisfied is a direct result of which would reduce the amount any of the Company’s failure to furnish information required under Section 5.15).
(b) In the event that all conditions set forth in Section 6.1 and Section 6.2 have been satisfied or waived or, upon funding shall be satisfied or waived (other than those conditions that by their nature can be satisfied only at the Closing), Parent shall use its reasonable best efforts to cause the Financing Sources to be funded fund on the Closing Date or adversely affect the conditionality or availability Debt Financing, to the extent the proceeds thereof are required to consummate the Transactions, and shall use its reasonable best efforts to enforce its rights under the Debt Letters (including by using reasonable best efforts to take enforcement action to cause such lenders and the other Financing Sources to fund such Debt Financing).
(c) Parent shall keep the Company reasonably informed of the status of Parent’s efforts to obtain the Debt Financing contemplated thereby on and to satisfy the conditions thereof, including advising and updating the Company, in a reasonable level of detail, with respect to status and proposed closing date of the Debt Financing. Without limiting the foregoing, Parent shall notify the Company as promptly as reasonably practicable (and in any event, with respect to clauses (i) and (ii), within one (1) Business Day) if at any time prior to the Closing Date:
(i) any Debt Letter expires or is terminated for any reason (or if any Person attempts to terminate or repudiate any Debt Letter in writing to Parent, whether or not such attempted termination or repudiation is valid);
(ii) any Financing Source refuses to provide to Parent or its Subsidiaries all or any portion of the Debt Financing contemplated by the Debt Letters on the terms set forth therein (or expresses in writing to Parent that such Person does not intend to enter into the definitive documents related to the Debt Financing or to consummate the transactions contemplated thereby); or
(iii) if at any time Parent no longer believes in good faith that it will 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 any of the Debt Letters or the definitive documents related to the Debt Financing.
(d) Without the prior written consent of the Company (which shall not be unreasonably withheld, conditioned or delayed), as Parent may not amend, modify, terminate, assign or agree to any waiver under the Debt Letters (other than to add lenders, arrangers, agents, bookrunners, managers and other financing sources) which would (i) reduce the aggregate amount of the maximum Debt Financing, (ii) impose new or additional conditions to the Debt Financing or otherwise expand, amend or waive any of the conditions to the Debt Financing or (iii) otherwise expand, amend or modify any provision of the Debt Letters, in each case in a manner that would reasonably be amended expected to (A) materially delay or modified prevent the consummation of the Transactions or (B) adversely impact in accordance with any material respect the terms hereof, collectively, the “Financing Commitments”), pursuant ability of Parent to which enforce its rights against the Financing Sources party thereto under the Debt Letters or the definitive agreements with respect thereto. In the event that new debt commitment letters are entered into in connection with any amendment, replacement, supplement or other modification of the Debt Letters permitted pursuant to this Section 5.14(d), such new commitment letters shall be deemed to be a part of the “Debt Financing” and deemed to be the “Debt Letters” for all purposes of this Agreement. Parent shall promptly deliver to the Company copies of any termination, amendment, modification, waiver or replacement of the Debt Letters.
(e) To the extent that Parent believes in good faith that it will not have committedfunds available, subject including cash on hand and the amounts set forth in the Debt Letters, that are sufficient to enable it to consummate the Transactions, Parent shall (i) notify the Company in writing thereof as promptly as reasonably practicable, and in any case, within one (1) Business Day, following the occurrence of such event, (ii) use its reasonable best efforts to obtain substitute financing, with terms and conditions not materially less favorable to Parent in the aggregate than the terms and conditions set forth thereinin the Debt Letters, sufficient to lend enable Parent to consummate the amounts set forth thereinTransactions in accordance with its terms (the “Substitute Financing”) and (iii) use its reasonable best efforts to obtain a new financing commitment letter that provides for such Substitute Financing and, a portion promptly after execution thereof, deliver to the Company true, complete and correct copies of which the new commitment letter and the related fee letters (in redacted form removing only the fee amounts, pricing caps, time periods, the rates and the economic terms of the “market flex”) with respect to such Substitute Financing. Upon obtaining any commitment for any such Substitute Financing, such financing shall be used deemed to be a part of the “Debt Financing” and any commitment letter for such Substitute Financing shall be deemed the “Debt Letters” for all purposes of funding this Agreement.
(f) Parent shall pay, or cause to be paid, as the purchase of the Purchased Equity same shall become due and the other transactions contemplated by this Agreement and paying the related payable, all fees and expenses specified herein other amounts that become due and payable under the Debt Letters.
(such portion, the “Financing”). None of the Financing Commitments has been amended or modified prior to the date of this Agreement g) Parent and Merger Sub expressly acknowledge and agree that neither Parent’s nor Merger Sub’s obligations hereunder are conditioned in any manner that would adversely impact upon Parent or Merger Sub obtaining the availability of, Debt Financing or add additional conditions precedent any Substitute Financing except to the availability of the Financing, and, as of the date of this Agreement, no such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date of this Agreement the commitments contained extent limited in the Financing Commitments have not been withdrawn or rescinded in any respectSection 8.11.
(bh) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions Notwithstanding anything in this Agreement to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereof, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (exceptcontrary, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, will any failure by Parent or any of its Subsidiaries to comply with or without notice, lapse of time or both, would reasonably this Section 5.14 be expected used by the Company as a basis to (ix) constitute a default terminate this Agreement pursuant to Section 7.1(d)(i) or breach on (y) assert the part failure of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a6.3(b) is to be satisfied, except in each case to the performance by Seller of extent Parent has acted in bad faith or committed a Willful and Material Breach with respect to its obligations under pursuant to this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated herebySection 5.14.
Appears in 1 contract
Financing. Within three (a3) As Business Days after full execution of this Agreement, Purchaser shall apply for (and provide Seller copies of such application) a commitment for a loan (and shall therefore pursue such application with reasonable diligence, including but not limited to executing all papers and performing all other actions necessary to obtain said loan commitment and to accept such commitment if it is obtainable by Purchaser) from a lender of Purchaser’s choice, in the principal amount not to exceed Five Million Nine Hundred Thousand Dollars ($5,900,000) together with seventy percent (70%) of Purchaser’s budgeted costs and expenses for Property acquisition, Property improvements and tenant finish, to be secured by a first lien on the Land and Improvements, having an interest rate and term acceptable to Purchaser. If Purchaser does not apply for such loan commitment on or before the date three (3) Business Days after the Effective Date (or does not provide Seller with copies of such application on or before the date three (3) Business Days after the Effective Date), Seller may, upon written notification to Purchaser, terminate this Agreement, and Escrow Agent shall pay one half of the date hereof, ▇▇▇▇▇▇▇ Money to Purchaser has delivered to Seller true and correct copies of (i) the executed commitment letter, dated as shall pay one half of the ▇▇▇▇▇▇▇ Money to Seller, whereupon, except for those provisions of this Agreement which by their express terms survive the termination of this Agreement, no party hereto shall have any other or further rights or obligations under this Agreement. If Purchaser applies for such loan commitment on or before the date hereofthree (3) Business Days after the Effective Date and thereafter pursues such application with reasonable diligence, among Purchaserexecuting all papers and performing all other actions necessary to obtain said loan commitment, SigmaTEK Systemsthen Purchaser shall have the right to terminate this Agreement at any time on or before December 18, LLC (“SigmaTEK”) and the Financing Sources thereto (including all exhibits2006, schedulesby written notification to Seller, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that Purchaser shall have no right to terminate this Agreement under this Section 3.5 in the event Purchaser obtains such Financing Commitment Documents may be redacted as to economic and “flex” termsloan commitment. If Purchaser, none of which would reduce on or before the amount expiration of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date)Inspection Period, as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), so terminates this Agreement pursuant to which this Section 3.5, Escrow Agent shall pay the Financing Sources party thereto have committed▇▇▇▇▇▇▇ Money to Purchaser, subject to the terms and conditions set forth thereinwhereupon, to lend the amounts set forth therein, a portion of which shall be used except for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portion, the “Financing”). None of the Financing Commitments has been amended or modified prior to the date those provisions of this Agreement in any manner that would adversely impact which by their express terms survive the availability of, or add additional conditions precedent to the availability of the Financing, and, as of the date termination of this Agreement, no such amendment party hereto shall have any other or modification is contemplated (other thanfurther rights or obligations under this Agreement. If Purchaser, for the avoidance of doubt, amendments subsequent to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as expiration of the date hereofInspection Period (and on or before December 18, 2006), and as so terminates this Agreement pursuant to this Section 3.5, Escrow Agent shall pay one half of the date ▇▇▇▇▇▇▇ Money to Purchaser and shall pay one half of the ▇▇▇▇▇▇▇ Money to Seller, whereupon, except for those provisions of this Agreement which by their express terms survive the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect.
(b) Except for fee letters (complete copies termination of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereof, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereofthis Agreement, no event has occurred which, with party hereto shall have any other or without notice, lapse of time further rights or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement. If Purchaser fails to so terminate this Agreement on or before December 18, 2006, and the satisfaction of the other conditions set forth in Sections 8.1prior to obtaining such loan commitment, 8.2 and 8.3, SigmaTEK and Purchaser shall have no reason further right to believe terminate this Agreement pursuant to this Section 3.5. The parties acknowledge that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will this Agreement shall not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing void or any voidable for lack of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated herebymutuality.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Wells Real Estate Fund Ix Lp)
Financing. (a) As of the date hereof, Purchaser has delivered to the Seller true correct and correct complete copies of (i) the an executed commitment letterletter among Terraform Power Operating, dated as LLC, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA, Bank of the date hereofAmerica, among PurchaserN.A. and ▇▇▇▇▇▇▇ Lynch, SigmaTEK SystemsPierce, LLC (“SigmaTEK”) and the Financing Sources thereto ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (including all any related exhibits, schedules, annexes, supplements and annexes theretoother related documents), and each dated on or about the executed fee letter associated therewith and referenced date of this Agreement (as amended, modified, supplemented, replaced or extended from time to time after the date of this Agreement in compliance with this Agreement, the “Debt Financing Commitments”), from each of the financing sources identified therein (collectively, the “Debt Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing CommitmentsSources”), pursuant to which the Debt Financing Sources party thereto have committed, subject to the terms and conditions set forth thereinthereof, to lend provide debt financing in the amounts set forth therein, a portion of which shall be used therein for the purposes purpose of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portioncollectively, the “Debt Financing”). None of , together with a customarily redacted fee letter from the Debt Financing Commitments has been amended or modified prior Sources related to the date of this Agreement Debt Financing (the “Fee Letter”).
(b) Except for the Fee Letter or as expressly set forth in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, andDebt Financing Commitments, as of the date of this Agreement, there are no such amendment side letters or modification other agreements, Contracts or written arrangements to which Purchaser or any of its affiliates is contemplated (other than, for the avoidance of doubt, amendments a party related to the draft credit agreement funding or investing, as applicable, of the Debt Financing which could reasonably be expected to adversely affect the availability of the Debt Financing contemplated thereby, and amendments or joinders by the Debt Financing Commitments. Assuming satisfaction of the conditions set forth in Section 7.01 (to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed extent any such condition is a condition under the Financing Commitments as control of the date hereof)Seller) and Section 7.03, and Purchaser does not have any reason to believe, as of the date of this Agreement Agreement, that it or any of its subsidiaries or affiliates will be unable to satisfy all conditions to be satisfied by it, its subsidiaries and its controlled affiliates with respect to any of the commitments contained in the Debt Financing Commitments have at the time it, its subsidiaries and its affiliates is required to consummate the Closing hereunder or that the Debt Financing will not been withdrawn be available to Purchaser or rescinded its affiliates party thereto at the Closing, including any reason to believe that any of the Debt Financing Sources will not perform their respective funding obligations under the Debt Financing Commitments in any respectaccordance with their respective terms and conditions.
(bc) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereof, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies (including pursuant to any “flex” provisions) related to the funding of the full amount of the FinancingDebt Financing pursuant to the Debt Financing Commitments, other than as expressly set forth in the Debt Financing Commitment Documents delivered Commitments. Assuming the Debt Financing is funded in accordance with the Debt Financing Commitments, the net proceeds contemplated by the Debt Financing Commitments, together with other financial resources of Purchaser, whether directly held or available for use by Purchaser, and its controlled affiliates including cash on hand and the proceeds of loans under existing credit facilities of Purchaser or its controlled affiliates on the Closing Date and funds that will be provided by controlled affiliates of Purchaser, in the aggregate, shall provide Purchaser and Merger Sub with cash proceeds on the Closing Date sufficient for the satisfaction of all of Purchaser’s and Merger Sub’s payment obligations under this Agreement and under the Debt Financing Commitments, including the payment of any amounts required to be paid pursuant to Article II, any fees and expenses of or payable by Purchaser, Merger Sub or the Surviving Corporation in connection with the Merger and the Debt Financing and any indebtedness required to be repaid, redeemed, retired, canceled, terminated or otherwise satisfied in connection with the Merger (including all indebtedness of the Seller prior and its subsidiaries required to be repaid, redeemed, retired, canceled, terminated or otherwise satisfied in connection with the date hereof. Merger).
(d) As of the date hereofof this Agreement, the Debt Financing Commitments are in full force and effect and constitute valid and binding obligations of Purchaser and any of its affiliates party thereto and, to the knowledge of Purchaser, each other party thereto, enforceable in accordance with their terms against Purchaser and any of its affiliates party thereto and, to the knowledge of Purchaser, each other party thereto (except as such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws, now or hereafter in effect, relating to creditors’ rights generally, and general equitable principles) and, as of the date of this Agreement, no event has occurred whichthat, with or without notice, lapse of time time, or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK Purchaser or any affiliate of Purchaser or, (iii) to the knowledge of Purchaser, result any other party thereto under the terms and conditions of the Debt Financing Commitments. Purchaser has paid in the Financing being unavailable on the Closing Date, so long as the conditions full any and all commitment fees or other fees required to be paid pursuant to the terms of the Debt Financing are satisfied Commitments and each condition set forth in Section 8.2 is satisfiedthe Fee Letters on or before the date of this Agreement. As of the date hereof, assuming the accuracy (i) none of the representations Debt Financing Commitments or Fee Letters has been modified, amended or otherwise altered (and warranties set forth in Article IV no such that modification, amendment or alteration is contemplated by Purchaser or, to the condition set forth in Section 8.2(aknowledge of Purchaser, any other party thereto) and (ii) none of the respective commitments under any of the Debt Financing Commitments have been withdrawn, terminated or rescinded (and no such withdrawal, termination or recission is satisfiedcontemplated by Purchaser or, to the performance by Seller knowledge of its obligations under Purchaser, any other party thereto).
(e) Purchaser is not entering into this Agreement and or the Debt Financing Commitment with the intent to hinder, delay or defraud either present or future creditors. Assuming (i) satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to Purchaser’s obligation to consummate the Financing transactions contemplated by hereby and (ii) the Financing Commitments applicable payment of the Purchase Price to it will not the Seller, payment of all amounts required to be satisfied on paid in connection with the Closing Date. and the other transactions contemplated hereby, and payment of all related fees and expenses, Purchaser affirms that it is not a condition to will be Solvent as of the Closing or any of its other obligations under this Agreement that Purchaser obtains Date and immediately after the Financing or any other financing for or related to any consummation of the transactions contemplated hereby. For the purposes of this Agreement, the term “Solvent” when used with respect to any person, means that, as of any date of determination (a) the amount of the “fair saleable value” of the assets of such person will, as of such date, exceed (i) the value of all “liabilities of such person, including contingent and other liabilities,” as of such date, as such quoted terms are generally determined in accordance with applicable laws governing determinations of the insolvency of debtors, and (ii) the amount that will be required to pay the probable liabilities of such person on its existing debts (including contingent and other liabilities) as such debts become absolute and mature, (b) such person will not have, as of such date, an unreasonably small amount of capital for the operation of the businesses in which it is engaged or proposed to be engaged following such date, and (c) such person will be able to pay its liabilities, including contingent and other liabilities, as they mature. For purposes of this definition, “not have an unreasonably small amount of capital for the operation of the businesses in which it is engaged or proposed to be engaged” and “able to pay its liabilities, including contingent and other liabilities, as they mature” means that such person will be able to generate enough cash from operations, asset dispositions or refinancing, or a combination thereof, to meet its obligations as they become due. Issuer: SunEdison, Inc., a Delaware corporation (the “Issuer”).
Appears in 1 contract
Financing. (a) As Parent and Merger Sub shall use reasonable best efforts to arrange and consummate the Debt Financing on the terms and conditions (including the flex provisions) described in the Debt Commitment Letters, including using reasonable best efforts (i) to maintain in effect the Debt Commitment Letters in accordance with the terms and subject to the conditions thereof, (ii) taking into account the Marketing Period, to negotiate and enter into definitive agreements with respect to the Debt Financing (the “Definitive Documents”) on the terms and conditions (including any flex provisions) contained in the Debt Commitment Letters (or on terms that, with respect to conditionality, are not materially less favorable to Parent or Merger Sub than the terms and conditions (including any flex provisions) in the Debt Commitment Letters and that would not adversely affect (including with respect to timing) the ability of Parent and Merger Sub to consummate the Transactions), (iii) to comply with their respective obligations under the Debt Commitment Letters and the Definitive Documents, (iv) to satisfy (or, if reasonably required to obtain the Debt Financing, seek the waiver of) on a timely basis all conditions to funding and/or availability of the Debt Financing in the Debt Commitment Letters and such Definitive Documents that are within the control of Parent, Merger Sub or their respective Affiliates, (v) if the Debt Financing is not funded on the Closing Date, to enforce its rights under the Debt Commitment Letters, and (vi) upon satisfaction of the conditions set forth in the Commitment Letter, consummate the Debt Financing at or prior to the time the Closing is required to occur pursuant to Section 1.3 to the extent necessary to consummate the transaction contemplated hereunder occurring at Closing. Parent and Merger Sub shall furnish correct and complete copies of any such Definitive Documents to the Company promptly upon execution thereof; provided that such Definitive Documents may be redacted in a manner in accordance with this Agreement.
(b) Without the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed), Parent shall not consent to any amendment or modification to, or any waiver of any provision under, the Debt Commitment Letters that (i) reduces (or has the effect of reducing) the aggregate amount of the Debt Financing (including by increasing the amount of fees to be paid or original issue discount in respect of the Debt Financing (except (i) as set forth in any flex provisions set forth in the Debt Commitment Letters on the date hereof and/or (ii) as expressly contemplated by the Debt Commitment Letter (as in effect on the date hereof))) available at Closing to pay the Required Amount (when taken together with any cash available for use on Parent’s (or its Affiliates’) balance sheet and any other sources available to Parent (or its Affiliates) for such purpose, Purchaser has delivered to Seller true and correct copies (ii) imposes new or additional conditions, or amends, replaces, supplements, modifies or otherwise expands any of (i) the executed commitment letter, dated conditions as of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) and to the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or funding and/or availability of the Debt Financing contemplated thereby on or the Closing Date), as may be amended or modified in accordance with consummation of the terms hereof, collectively, the “Financing Commitments”), Transactions when required pursuant to which the Financing Sources party thereto have committed, subject to the terms and conditions set forth therein, to lend the amounts set forth therein, Section 1.3 in a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portion, the “Financing”). None of the Financing Commitments has been amended or modified prior to the date of this Agreement in any manner that would adversely impact be more onerous than the availability of, or add additional conditions precedent to funding contemplated in the availability of the Financing, and, Debt Commitment Letters as of the date of this Agreement, no such amendment (iii) makes the funding of any portion of the Debt Financing (or modification is contemplated (other than, for satisfaction of any condition to obtaining any portion of the avoidance Debt Financing) less likely to occur or adversely affects the ability of doubt, amendments Parent. or Merger Sub to enforce or cause the enforcement of their respective rights under the Debt Commitment Letters or the Definitive Documents with respect to the draft credit agreement contemplated therebyDebt Financing relative to their respective ability to enforce or cause the enforcement of their rights under the Debt Commitment Letters or the Definitive Documents as of the date hereof or (iv) would reasonably be expected to prevent or materially impede, impair, hinder or delay the funding and/or availability of the Debt Financing or the consummation of the Transactions when required pursuant to Section 1.3 (it being acknowledged and amendments agreed that, notwithstanding the preceding, Parent may replace, amend or joinders otherwise modify the Debt Commitment Letters to the (1) add additional Debt Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had Sources that have not executed the Financing Commitments Debt Commitment Letters as of the date hereof), and as which may result in the termination of the date Amendment Commitments (as defined in the Commitment Letter) and/or (2) replace all or a portion of this Agreement the commitments contained under the Commitment Letter with permanent financing and/or commitments therefor meeting the requirements of Section 5.14(b)). Parent shall furnish to the Company a copy of any amendment, supplement, modification or waiver entered into by Parent and/or the Debt Financing Sources with respect to the Debt Commitment Letters promptly after execution thereof; provided that such amendment, supplement, modification or waiver may be redacted in the Financing Commitments have not been withdrawn or rescinded a manner in any respectaccordance with this Agreement.
(bc) Except for fee letters Parent shall give the Company prompt written notice if (complete copies i) Parent obtains Knowledge of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date material breach or adversely affect the conditionality default (or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters any event or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereof, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred whichcircumstance that, with or without notice, notice or the lapse of time or both, would reasonably be expected to (iresult in a material breach or default) constitute a default by any party to the Debt Commitment Letters or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing DateDefinitive Documents, (ii) constitute Parent or Merger Sub receives any written notice or other written communication (including email), in each case, from any Debt Financing Source with respect to any (A) actual or threatened (or allegation of) breach, default, termination or repudiation of the Debt Commitment Letters or any Definitive Document, in each case, with respect to any material provision thereof or that would reasonably be expected to prevent or materially delay the Closing, or (B) material dispute or disagreement between or among any parties to the Debt Commitment Letters or the Definitive Documents, in each case, with respect to the Debt Financing (but excluding, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Debt Financing) and (iii) Parent or Merger Sub, has Knowledge that all or any portion of the Debt Financing will not be available to the Company at the Closing on the terms set forth in the Debt Commitment Letters or the Definitive Documents. If any portion of the Debt Financing becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Debt Commitment Letters or, if applicable, the Definitive Documents, Parent shall (1) promptly notify the Company of such unavailability and to the Knowledge of Parent, the reason therefor (it being understood that in no event will Parent, Merger Sub or any Affiliate thereof be under any obligation to disclose any information that is subject to any applicable legal privileges (including the attorney-client privilege) and (2) use its reasonable best efforts to arrange and cause to be obtained, as promptly as practicable, in replacement thereof alternative financing from the Debt Financing Sources or alternative financing sources (the “Alternative Financing”) in an amount (when taken together with any cash available for use on Parent’s (or any of its Affiliates’) balance sheet and any other sources of capital available to Parent or its Affiliates for such purpose) sufficient to fund the Required Amount and on terms and conditions (including structure, covenants and pricing) not materially less favorable to Parent (including with respect to conditionality and taking into account the flex provisions) than the terms and conditions set forth in the Debt Commitment Letters as in effect on the date hereof (including with respect to conditionality and taking into account the flex provisions). To the extent requested by the Company from time to time in writing, Parent shall keep the Company informed in reasonable detail on a failure reasonably current basis of the status of its efforts to arrange the Debt Financing or any Alternative Financing and at the request of the Company in writing, Parent shall provide to the Company copies of all material drafts and amendments of the Definitive Documents and all executed copies thereof; provided that such Definitive Documents may be redacted in a manner in accordance with this Agreement. For purposes of this Agreement, references to “Debt Financing” shall include any Alternative Financing arranged or obtained in accordance with this Section 5.14, and “Debt Commitment Letters” and “Definitive Documents” shall include, respectively, such debt commitment letters and any other documents related to such Alternative Financing.
(d) Prior to the Closing, the Company shall use its reasonable best efforts to, and shall cause each of its Subsidiaries to use their commercially reasonable efforts to, and shall use its reasonable best efforts to cause its and their respective Representatives (including legal and accounting) to use their reasonable best efforts to, in each case at Parent’s sole expense, provide Parent and Merger Sub such cooperation reasonably requested by Parent or any Debt Financing Source to arrange, underwrite, obtain, syndicate and/or consummate the Debt Financing, including (but not limited to):
(i) collaborating in preparation of Offering Documents
(ii) making officers of appropriate seniority reasonably available, with appropriate advance notice and at times and locations reasonably acceptable to the Company, for participation in bank meetings, additional bank calls during normal business hours at times to be mutually agreed, road shows and due diligence sessions (including accounting due diligence sessions);
(iii) furnishing Parent and the Debt Financing Sources copies of such historical financial data with respect to the Company and its Subsidiaries prepared in the ordinary course of business and other financial data reasonably requested by Parent or any Debt Financing Source, or as may be required to be delivered to satisfy a condition precedent under the Debt Commitment Letters (including, without limitation, the Required Information that is Compliant), information for the periods required by Rule 3-05(b)(2) of Regulation S-X and, as promptly as practical, 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 of 1933 and other accounting rules and regulations of the SEC as may reasonably be requested of the type and form required in registration statements filed with the SEC on Form S-1 (including, to the availability extent necessary and ascertainable or determinable by the Company, customary “flash” financial information);
(iv) furnishing due diligence information (including, subject to the receipt of customary non-reliance letters, reports prepared by third parties) requested by the Debt Financing Sources in connection with the Offering Documents;
(v) furnishing information relating to the compliance by the Company and its subsidiaries with all applicable government laws and regulations;
(vi) assisting with the preparation of customary materials relating to the Company and its Subsidiaries for rating agency presentations, and participating in rating agency meetings, in each case, reasonably requested in connection with the Debt Financing, in each case, with respect to information relating to the Company and its Subsidiaries;
(vii) providing information reasonably requested by Parent or any Debt Financing Source regarding the Company and its Subsidiaries under applicable “know your customer”, anti-money laundering rules and regulations and the USA PATRIOT Act of 2001, as amended, and the Beneficial Ownership Regulation, in each case, at least five (5) Business Days prior to the Closing Date to the extent requested in writing at least ten (10) Business Days prior to the Closing Date;
(viii) providing reasonable and customary authorization letters, confirmations and undertakings to the Debt Financing Sources authorizing the distribution of information relating to the Company and its Subsidiaries to prospective lenders or other debt investors (including with respect to presence or absence of material non-public information and accuracy of the information contained therein);
(ix) providing reasonable and customary assistance in the preparation by Parent of (but not preparing) pro forma financial information and pro forma financial statements (it being understood that Parent shall be responsible for the preparation of any pro forma calculations, any post-Closing or other pro forma cost savings, capitalization, ownership or other pro forma adjustments that may be included therein);
(x) requesting its independent auditors to (A) provide, consistent with customary practice, customary auditors consents and customary comfort letters (including, if relevant, customary “negative assurance” and change period comfort) with respect to financial information relating to the Company and its Subsidiaries as reasonably requested by Parent and necessary or customary for financings similar to the Debt Financing on (and to provide such customary officer’s certificates as are requested by the part Company’s auditors in connection therewith) and (B) attend accounting due diligence sessions and drafting sessions;
(xi) taking such actions as are reasonably requested by ▇▇▇▇▇▇, Merger Sub or the Debt Financing Sources to facilitate the satisfaction of SigmaTEK the conditions set forth in the Debt Commitment Letters (to the extent the satisfaction of such conditions requires actions by or Purchaser orcooperation of the Company);
(xii) cooperating in connection with obtaining customary surveys and title policies (including customary title affidavits and similar documentation required in connection therewith) with respect to the Real Property; and
(xiii) requesting its independent accountants to provide reasonable assistance to Parent and Merger Sub consistent with their customary practice (including to provide consent to Parent and Merger Sub to prepare and use their audit reports relating to the Company).
(e) Notwithstanding anything to the contrary, (i) nothing in the preceding clause (d) shall require the Company or its Subsidiaries to cooperate or take other actions to the extent it would interfere unreasonably or materially with the business or operations of the Company or its Subsidiaries (it being acknowledged that subclauses (i) through (xii) of clause (d) above do not so interfere), encumber any of the assets of the Company or any of its Subsidiaries prior to Closing, or require the Company or any of its Subsidiaries to pay any commitment or other fee or make any other payment or incur any other monetary or liability or obligation in connection with the Debt Financing prior to the Closing Date (unless promptly reimbursed by Parent pursuant to the terms of this Agreement), (ii) no obligation of the Company or any of its Subsidiaries under any agreement, certificate, document or instrument executed pursuant to the foregoing shall be effective until the Closing (other than as provided for in subclauses (vii) and (x) of clause (d) above), (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As none of the date hereof, assuming the accuracy boards of directors (or equivalent bodies) of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing Company or any of its other obligations under this Agreement Subsidiaries shall be required to enter into or adopt any resolutions or take similar action approving or authorizing the Debt Financing, the effectiveness of which is not conditioned upon the occurrence of the Closing, and (iv) nothing herein shall require the Company or its Subsidiaries to (A) execute or deliver any definitive financing agreements, the effectiveness of which is not conditioned upon the occurrence of the Closing, or cause any definitive financing agreements to be signed by any officer or director of the Company that Purchaser obtains the Financing is not continuing on as an officer or director immediately after Closing, (B) take any other financing for action that could reasonably be expected to conflict with, or related to violate, any of the transactions contemplated hereby.Company’s or its Subsidiaries’ organization documents or applicable Law or result in a breach of the terms of this Agreement, (C) prepare or deliver any legal opinions, or (D) consent to any grant of any Lien on or security interest in the assets of the Company or any of its Subsidiaries, the e
Appears in 1 contract
Sources: Transaction Agreement (Vistra Corp.)
Financing. (a) As of the date hereof, Purchaser has delivered to Seller true and correct copies of (i) the executed commitment letter, dated as of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) and the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject Subject to the terms and conditions of this Agreement, Buyer will use its reasonable best efforts to take, or cause to be taken, all appropriate actions and to do, or cause to be done, all things reasonably necessary to arrange and obtain the Financing on a timely basis (taking into account the anticipated timing of the Apple Marketing Period) on terms and conditions no less favorable to Buyer than those contained in the Commitment Letters (including any “market flex” provisions that are contained in the Fee Letter), including using its reasonable best efforts to (i) maintain in effect the Commitment Letters (subject to the right of Buyer to replace, restate, supplement, modify, assign, substitute or amend the Commitment Letters in accordance herewith), (ii) enter into definitive agreements with respect to the Debt Commitment Letter (such definitive agreements being referred to as the “Debt Financing Agreements”) on terms and conditions no less favorable to Buyer than those contained in the Debt Commitment Letter and the Fee Letter (including any such “market flex” provisions contained in the Fee Letter) and with no conditions to the funding of the Debt Financing Agreements other than those contained in the Commitment Letters delivered on the date hereof, (iii) satisfy, and use reasonable best efforts to cause the Debt Financing Sources to satisfy, on a timely basis (taking into account the anticipated timing of the Apple Marketing Period) or obtain, and use reasonable best efforts to cause the Debt Financing Sources to provide, the waiver of all conditions applicable to Buyer contained in the Commitment Letters (or any definitive agreements related thereto), (iv) consummate the Financing contemplated by the Commitment Letters and the Fee Letter substantially concurrently with the Closing, and (v) enforce its rights under the Commitment Letters or the Debt Financing Agreements (including through litigation diligently pursued in good faith). Buyer will keep HD Supply informed upon request on a reasonable basis and in reasonable detail of the status of its efforts to arrange the Financing. Buyer will give HD Supply prompt notice upon having knowledge of any material breach by any party of any of the Commitment Letters or any termination of, or failure to satisfy any condition precedent set forth thereinin, to lend the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase any of the Purchased Equity Commitment Letters. Buyer will promptly (and in any event within two Business Days of receipt) provide HD Supply with any material notices from the other transactions contemplated by this Agreement and paying Debt Financing Sources relating to the related fees and expenses specified herein (such portion, the “Financing”). None availability of the Debt Financing Commitments has been amended at the Closing. Buyer will not amend, amend and restate or modified prior to otherwise modify (or enter into any consent, waiver or forbearance with respect to) the date of this Caramel Agreement in any manner that would adversely impact reasonably be expected to impair or delay the availability ofClosing without the prior written consent of HD Supply (such consent not to be unreasonably withheld, conditioned or delayed). Buyer will promptly (and in any event within two Business Days) notify HD Supply of (i) the commencement of the Caramel Marketing Period, (ii) any material notices from a party to the Caramel Agreement that could reasonably be expected to impair or delay the Closing, and (iii) any expiration or termination of the Caramel Agreement.
(b) Other than as set forth in this Section 5.8(b) or Section 5.8(c), Buyer will not, without the prior written consent of HD Supply (such consent not to be unreasonably withheld, conditioned or delayed), permit any amendment or modification to be made to, or add any waiver of any provision or remedy under, the Commitment Letters (it being understood that the exercise of any “market flex” provisions contained in the Fee Letter will be deemed not to be an amendment, modification or waiver) to the extent such amendment, modification or waiver would (i) impose new or additional conditions precedent to the availability receipt of the Financing, and, as or otherwise amend or modify any of the date terms to the receipt of the Financing, in each case, in a manner that would reasonably be expected to prevent or materially impair or materially delay the Closing or (ii) reduce the aggregate amount of the Financing such that Buyer would not or does not have sufficient cash proceeds to permit Buyer to pay the Closing Purchase Price and all other amounts required to be paid by Buyer on the Closing Date under this Agreement; provided that Buyer may amend, no such amendment supplement or modification is contemplated (other than, for modify the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed (or titles with respect to such entities) (it being understood that the Financing Commitments as aggregate commitments of the date hereoflenders 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 commitments); provided further that Buyer will notify HD Supply in writing of any amendment, supplement or other modification of, or waiver of any provision or remedy under, the Commitment Letters not otherwise prohibited by the foregoing clause (i) or (ii), promptly, and in any event within two Business Days, after the time such amendment, supplement, modification or waiver is agreed. Upon any such amendment, supplement or other modification of, or waiver under, the Equity Commitment Letter or Debt Commitment Letter in accordance with this Section 5.8(b), the term “Equity Commitment Letter” or “Debt Commitment Letter”, as applicable thereto, will mean such Commitment Letter as so amended, supplemented, modified or waived.
(c) If any portion of the date of this Agreement Debt Financing becomes unavailable on the commitments terms and conditions (including any “market flex” provisions that are contained in the Financing Commitments have not been withdrawn or rescinded in any respect.
(bFee Letter) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Debt Commitment Letter and the Fee Letter (other than as a result of HD Supply’s material breach of any provision of this Agreement, or failure to satisfy the conditions set forth in Article VII), Buyer will (i) promptly, and in any event within two Business Days, notify HD Supply of such unavailability, and (ii) promptly use its reasonable best efforts to arrange and obtain alternative financing for any such portion of the Debt Financing Commitments delivered from the same or alternative sources, which may include one or more of a senior secured debt financing, an offering and sale of notes, or any other financing or offer and sale of other debt securities, or any combination thereof (the “Alternative Financing”); provided that Buyer will not be required to Seller prior arrange or obtain any Alternative Financing having terms and conditions less favorable to Buyer than the terms and conditions (including “market flex” provisions) contained in the Debt Commitment Letter and the Fee Letter. In the event Buyer enters into any Alternative Financing, (A) any reference in this Agreement to the date hereof. Purchaser “Debt Commitment Letter” will be deemed to include the commitment letter with respect to such Alternative Financing, (B) any reference in this Agreement to the “Debt Financing” will be deemed to include such Alternative Financing (and SigmaTEK have fully paid consequently the term “Financing” will be deemed to include the Equity Financing and the Alternative Financing), (C) any reference in this Agreement to the “Committed Lenders” will be deemed to include the persons committing to provide such Alternative Financing, and (D) any reference in this Agreement to the “Debt Financing Sources” will be deemed to include the Persons providing or arranging such Alternative Financing; provided further that Buyer will deliver to HD Supply complete and correct copies of all commitment fees amendments, supplements, other modifications or agreements pursuant to which any Alternative Financing will be made available to Buyer promptly, and in any event within two Business Days, after the time such amendments, supplements, other fees modifications or agreements are agreed (provided, that the existence or amount of fees, flex provisions, pricing terms, pricing caps and other commercially sensitive terms specified in any fee letter may be redacted).
(d) Prior to the Closing, HD Supply will, and will cause its Affiliates (including the Acquired Companies) to, and will use its reasonable best efforts to cause its and any of their respective personnel and Representatives (including legal and accounting Representatives) to, use their reasonable best efforts to cooperate with Buyer as necessary in connection with the arrangement and obtaining of the Debt Financing Commitments or any high-yield bonds being issued in lieu of all or a portion of the Debt Financing as may be reasonably requested by Buyer and is customary for financing of such type (provided, that are payable on such requested cooperation does not unreasonably interfere with the ongoing operations of HD Supply or any of its Affiliates (including the Acquired Companies)), including:
(A) furnishing Buyer and the Debt Financing Sources as promptly as practicable with (x) the Audited Financial Statements, accompanied by the audit reports thereon of Pricewaterhouse Coopers LLC and (y) unaudited combined balance sheets and related statements of operations and comprehensive income, equity and cash flows of the Business prepared in accordance with GAAP for any subsequent interim period ended at least 45 days prior to the date hereof. As Closing Date and for the comparable period of the prior fiscal year, together with all related notes and schedules thereto (the “Interim Financial Statements”), in the case of each of clauses (x) and (y), prepared in accordance with GAAP and in compliance with Regulation S-X (other than Rules 3.03(e), 3-09, 3-10 and 3-16 of Regulation S-X), (B) furnishing Buyer and the Debt Financing Sources as promptly as practicable with all other financial information reasonably necessary to allow Buyer to prepare pro forma financial statements (including for the most recent four fiscal quarter period ended at least 45 days prior to the Closing Date) that give effect to the transactions contemplated hereunder and under the Caramel Agreement as if the transactions had occurred as of such date hereof(in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) and in accordance with GAAP, which need not be prepared in compliance with Regulation S-X or include adjustments for purchase accounting to the Financing Commitments are extent not customary in full force private placements pursuant to Rule 144A promulgated under the Securities Act, financial data, business and effect other information (including a customary “Management’s Discussion and Analysis of Financial Condition and Results of Operations” with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each Business) regarding the Business of the type that would be required by Regulation S-X (including Item 3-05 thereof, but excluding Rules 3.03(e), 3-09, 3-10 and 3-16 of Regulation S-X) and Regulation S-K (other parties thereto (exceptthan Item 402 of Regulation S-K) for a registered public offering of non-convertible debt securities of Buyer, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting case to the enforcement extent the same is of creditors’ rights generallythe type and form customarily included in, and general principles subject to other exceptions that are customary for, an offering memorandum for private placements of equity (regardless of whether such enforceability is considered in a proceeding in Law non-convertible high-yield bonds under Rule 144A promulgated under the Securities Act, or equity)). As otherwise necessary to receive from the independent auditors of the date hereof, there are no conditions precedent or Business (and any other contingencies related auditor to the funding extent financial statements audited or reviewed by such auditor are or would be included in such offering memorandum) customary “comfort” (including “negative assurance” comfort) with respect to the financial information of the full amount of the Financing, other than as expressly set forth Business to be included in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred such offering memorandum and which, with respect to the Interim Financial Statements, will have been reviewed by the independent auditors of the Business as provided in AU 722, and (C) causing the auditors of the Business to furnish consents for use of their unqualified audit reports in any materials relating to the Debt Financing or without noticeany high yield bonds being issued in lieu of all or a portion of the Debt Financing (the authorization letters referred to in clause (v) below, lapse of time or both, would reasonably be expected the draft comfort letters referred to in clause (vi) below and all information specified in this clause (i) constitute a default ), the “Apple Required Information”); provided that, for the avoidance of doubt, such Apple Required Information will not include the preparation of pro forma financial information by HD Supply or breach on any Affiliate thereof; provided, further, that HD Supply and its Affiliates will not be required to provide any audited, unaudited or other financial statements except the part of SigmaTEK or Purchaser under Audited Financial Statements and the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, Interim Financial Statements;
(ii) constitute causing the Acquired Companies’ management teams, with appropriate seniority and expertise, at reasonable times and upon reasonable notice, to assist in preparation for and participate in a failure reasonable number of management and other meetings (including customary one-on-one meetings with the parties acting as lead arrangers, bookrunners or agents for, and prospective lenders and buyers of, the Debt Financing or any high-yield bonds being issued in lieu of all or a portion of the Debt Financing), lender presentations, due diligence sessions, drafting sessions, road shows or rating agency presentations in connection with the Debt Financing or any high-yield bonds being issued in lieu of all or a portion of the Debt Financing;
(iii) assisting Buyer and the Debt Financing Sources with the preparation of materials for customary offering memoranda, confidential information memoranda, lender presentations, high-yield roadshow presentations or memoranda, private placement memoranda, bridge teasers, syndication memoranda, bank information memoranda and similar documents and rating agency presentations required in connection with the Debt Financing or any high-yield bonds being issued in lieu of all or a portion of the Debt Financing, including (A) records, data or other information reasonably necessary to satisfy a condition precedent (1) support any statistical information or claims relating to the Business appearing in the aforementioned materials and (2) allow Buyer to prepare any financial projections which are conditions to the availability of the Debt Financing on and (B) rating agency presentations;
(iv) taking reasonable steps to facilitate the part granting of SigmaTEK or Purchaser orguarantees and the pledging, (iii) to granting of security interests in, and otherwise granting of liens on, the knowledge assets of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the Business which are conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As availability of the date hereofDebt Financing pursuant to customary guarantee, assuming pledge and security agreements to be effective from and after the accuracy Closing;
(v) providing customary authorization letters to the Debt Financing Sources authorizing the distribution of information to prospective lenders (including customary 10b-5 and material non-public information representations) which will be in a form reasonably acceptable to HD Supply in all respects;
(vi) (A) causing PricewaterhouseCoopers LLP (and any other auditor to the extent financial statements audited or reviewed by such auditor are or would be included in such offering memorandum) to (x) furnish to Buyer and the Debt Financing Sources promptly with drafts of customary comfort letters that the independent auditors of the representations Business are prepared to deliver upon “pricing” and warranties set forth closing of any high-yield bonds being issued in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller lieu of its obligations under this Agreement and the satisfaction all or a portion of the Debt Financing and (y) deliver such comfort letters upon the “pricing” and closing of any such high-yield bonds, and (B) using reasonable best efforts to cause PricewaterhouseCoopers LLP (and any other conditions set forth auditor to the extent financial statements audited or reviewed by such auditor are or would be included in Sections 8.1such offering memorandum) to participate in accounting due diligence sessions.
(vii) promptly, 8.2 and 8.3in any event no later than three Business Days prior to the Closing, SigmaTEK providing all documentation and Purchaser have no reason to believe information that any lender, provider or arranger of any Debt Financing or trustee for the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition high-yield bonds has reasonably requested at least nine Business Days prior to the Closing or any of its other obligations under this Agreement that Purchaser obtains the Date in connection with such Debt Financing or high-yield bonds under applicable “know your customer” and anti-money laundering Laws, including the USA PATRIOT Act and the CDD Rule;
(viii) executing and delivering the Debt Financing Agreements and any other credit agreements, indentures, notes, guarantees, pledge and security documents, including blocked account and control arrangements, hedging arrangements, other definitive financing for or related to any of the transactions contemplated hereby.documents
Appears in 1 contract
Financing. (a) As of Parent shall use its reasonable best efforts to arrange the date hereof, Purchaser has delivered to Seller true and correct copies of (i) the executed commitment letter, dated as of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) and the Debt Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject to the terms and conditions set forth thereindescribed in the Commitment Letter, including using reasonable best efforts to lend (i) negotiate definitive agreements with respect thereto on terms and conditions contained therein and (ii) to satisfy all conditions applicable to Parent and Merger Sub in such definitive agreements that are within its control. In the amounts set forth therein, a event any portion of which the Debt Financing becomes unavailable on the terms and conditions contemplated in the Commitment Letter, Parent shall be used for use its reasonable best efforts to arrange to obtain any such portion from alternative sources on comparable or more favorable terms to Parent (as determined in the purposes reasonable judgment of funding Parent) as promptly as practicable following the purchase occurrence of such event. Parent shall give the Company prompt notice of any material breach by any party of the Purchased Equity Commitment Letter or any termination of the Commitment Letter. Parent shall keep the Company informed on a reasonably current basis in reasonable detail of the status of its efforts to arrange the Financing and shall not permit any material amendment or modification to be made to, or any waiver of any material provision or remedy under, the other Commitment Letter without first consulting with the Company or, if such amendment would or would be reasonably expected to materially and adversely affect or delay in any material respect Parent's ability to consummate the transactions contemplated by this Agreement, without first obtaining the Company's prior written consent (not to be unreasonably withheld or delayed). For the avoidance of doubt, if the Debt Financing (or any alternative financing) has not been obtained, Parent and Merger Sub shall continue to be obligated to consummate the Merger on the terms contemplated by this Agreement and paying subject only to the related fees and expenses specified herein (such portion, the “Financing”). None satisfaction or waiver of the Financing Commitments has been amended or modified prior to the date conditions set forth in Sections 6.1 and 6.2 of this Agreement in any manner that would adversely impact the availability ofand to Parent's rights under Sections 7.2 and 7.3, or add additional conditions precedent to the availability regardless of the Financing, and, as whether Parent and Merger Sub have complied with all of the date of this Agreement, no such amendment or modification is contemplated (their other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date of obligations under this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect(including their obligations under this Section 5.18).
(b) Except for fee letters (complete copies of which have been provided The Company agrees to Seller; providedprovide, howeverand shall cause the Subsidiaries and its and their Representatives to provide, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees reasonable cooperation in connection with the Financing Commitments that are payable on or prior to the date hereof. As arrangement of the date hereof, Debt Financing as may be reasonably requested by Parent (provided that such requested cooperation does not unreasonably interfere with the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each ongoing operations of the other parties thereto (exceptCompany and the Subsidiaries), in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to including (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Dateparticipation in meetings, drafting sessions and due diligence sessions, (ii) constitute a failure to satisfy a condition precedent to furnishing Parent and its financing sources with financial and other pertinent information regarding the availability of the Financing on the part of SigmaTEK or Purchaser orCompany as may be reasonably requested by Parent, (iii) assisting Parent and its financing sources in the preparation of (A) an offering document for any debt raised to complete the Merger and (B) materials for rating agency presentations, (iv) reasonably cooperating with the marketing efforts of Parent and its financing sources for any debt raised by Parent to complete the Merger, (v) forming new direct or indirect Subsidiaries, and (vi) providing and executing documents as may be reasonably requested by Parent; provided that none of the Company or any Subsidiary 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 knowledge Effective Time. Parent shall, promptly upon request by the Company, reimburse the Company for all reasonable out-of-pocket costs incurred by the Company or the Subsidiaries in connection with such cooperation. Parent and Merger Sub shall, on a joint and several basis, indemnify and hold harmless the Company, the Subsidiaries and their respective Representatives for 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 Purchaser, result the Debt Financing and any information utilized in the Financing being unavailable on the Closing Date, so long as the conditions connection therewith (other than historical information relating to the Financing are satisfied and each condition set forth in Section 8.2 is satisfiedCompany or the Subsidiaries). As of Notwithstanding anything to the date hereofcontrary, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a6.2(b) is satisfiedof this Agreement, as it applies to the performance by Seller Company's obligations under this Section 5.18(b), shall be deemed satisfied unless the Debt Financing (or any alternative financing) has not been obtained primarily as a result of the Company's willful and material breach of its obligations under this Agreement and Section 5.18(b).
(c) All non-public or otherwise confidential information regarding the satisfaction of Company obtained by Parent or its Representatives pursuant to paragraph (b) above shall be kept confidential in accordance with the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated herebyConfidentiality Agreement.
Appears in 1 contract
Financing. Parent has received and accepted: (a) As of the date hereof, Purchaser has delivered to Seller true and correct copies of (i) the an executed commitment letterletter dated August 12, dated 2019 (as of the date hereofamended, among Purchasermodified, SigmaTEK Systemssupplemented, LLC (“SigmaTEK”) and the Financing Sources thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as replaced or extended from time to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject to the terms and conditions set forth therein, to lend the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portion, the “Financing”). None of the Financing Commitments has been amended or modified prior to time after the date of this Agreement in compliance with Section 6.17, the “Debt Commitment Letter”) from the Debt Financing Sources party thereto (including any manner that would adversely impact Debt Financing Sources who become party thereto by joinder in accordance with the availability ofterms thereof) pursuant to which the Debt Financing Sources have agreed, subject solely to the terms and conditions thereof and expressly stated therein, to provide (a) the debt amounts set forth therein which is the full amount of the debt financing required to consummate the transactions contemplated by this Agreement (such debt financing, together with any permitted Alternative Financing, the “Committed Financing”) and which may be reduced pursuant to Section 6.1(d)(iii). Parent has delivered to Seller true, complete and correct copies of the executed Commitment Letter and any fee letters referred to in, or add additional contemplated by, the Debt Commitment Letter (with only fee amounts, pricing caps and other economic “market flex” terms redacted, so long as such redaction does not cover terms that could affect the conditionality, amount, timing, availability or termination of the Committed Financing) (each as amended, modified, supplemented, replaced or extended from time to time after the date of this Agreement in compliance with Section 6.17, the “Fee Letter”). Except as set forth in the applicable Commitment Letter, there are no conditions precedent to the availability obligations of the Debt Financing Sources to provide the Committed Financing or any contingencies that would permit the Debt Financing Sources to reduce the total amount of the Committed Financing. There are no other agreements, side letters or arrangements relating to the Committed Financing to which Parent or any of its Affiliates is a party that could impose conditions to the funding of the Committed Financing, and, as other than those set forth in Debt Commitment Letters (or in the unredacted portions of the Fee Letter). As of the date of this Agreement, no such amendment Parent does not have any reason to believe that it will be unable to satisfy on a timely basis all conditions to be satisfied by it in the Debt Commitment Letter or modification the Fee Letter at the time it is contemplated required to consummate the Closing hereunder. Except for any amendments (other than, for the avoidance of doubt, amendments in compliance with Section 6.17) delivered to Seller on or prior to the draft credit agreement contemplated therebydate of this Agreement, and amendments neither of the Debt Commitment Letter nor the Fee Letter have been modified, altered or joinders amended on or prior to the Financing Commitments solely date of this Agreement, nor, to add lendersthe Knowledge of Buyer, lead arrangersis any such amendment, bookrunnersmodification, syndication agents withdrawal, termination or similar entities as parties thereto who had not executed rescission currently contemplated or the Financing Commitments as subject of current discussions. None of the commitments under the Debt Commitment Letter entered into on or prior to the date hereofhereof have been withdrawn, terminated or rescinded prior to the date of this Agreement. Subject to its terms and conditions, the Committed Financing, when funded in accordance with the Debt Commitment Letter, will provide Buyer with acquisition financing proceeds on the Closing Date sufficient, together with available cash of the Buyer Group from sources other than the Committed Financing, to consummate the transactions contemplated by this Agreement (including making all necessary payments of fees and expenses in connection with the transactions contemplated hereby and both before and after giving effect to any “flex” provisions contained in the Fee Letter), and as . As of the date of this Agreement Agreement, the commitments contained Debt Commitment Letter is (as to the Buyer Group and to the Knowledge of Buyer, the other parties thereto) valid, binding and in full force and effect and no event has occurred that, with or without notice, lapse of time, or both, which would reasonably be expected to constitute a default or breach or a failure to satisfy a condition precedent on the Financing Commitments have not been withdrawn or rescinded in any respect.
(b) Except for fee letters (complete copies part of which have been provided to Seller; providedParent under the terms and conditions of the Debt Commitment Letter, however, that other than any such fee letter may redacted default, breach or failure that has been irrevocably waived by the Debt Financing Sources, as applicable, or otherwise cured in a timely manner by Parent to economic and “flex” terms, none of which would reduce the amount satisfaction of the Debt Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as Sources. As of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditionsof this Agreement, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth Buyer Group has paid in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid full any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior required to be paid pursuant to the date hereof. As terms of the Commitment Letters entered into as of the date hereofhereof or Fee Letter on or before the date of this Agreement, the Financing Commitments are and will pay in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as any such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium amounts due on or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on before the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated hereby.
Appears in 1 contract
Financing. (a) As of the date hereof, Purchaser Parent has delivered to Seller the Company true and correct complete fully executed copies of (i) the executed commitment letter, dated as of the date hereofMarch 11, 2014, among PurchaserParent, SigmaTEK SystemsBank of America, LLC (“SigmaTEK”) N.A., M▇▇▇▇▇▇ Lynch, Pierce, F▇▇▇▇▇ & S▇▇▇▇ Incorporated, JPMorgan Chase Bank, N.A. and the Financing Sources thereto (J.▇. ▇▇▇▇▇▇ Securities LLC, including all exhibits, schedules, annexes and annexes thereto, and amendments to such letter in effect as of the executed fee letter associated therewith and referenced therein date of this Agreement (collectively, the “Financing Commitment Documents”) (provided, however, that such Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing CommitmentsLetter”), pursuant to which the Financing Sources party thereto have committed, and subject to the terms and conditions set forth therein, thereof each of the parties thereto (other than Parent) have severally committed to lend the amounts set forth therein to Parent (the provision of such funds as set forth therein, a portion but subject to the provisions of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portionSection 6.17, the “Financing”) for the purposes set forth in such Commitment Letter. The Commitment Letter has not been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, and the respective commitments contained in the Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement except as permitted pursuant to Section 6.17. As of the execution and delivery of this Agreement, the Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of each of Parent and, to the knowledge of Parent, the other parties thereto. There are no conditions precedent or contingencies (other than pursuant to the “flex” provisions of the Fee Letter (as defined in the Commitment Letter). None , a true and complete copy of which (redacted only as to the matters indicated therein) has been provided to the Company by Parent) related to the funding of the full amount of the Financing Commitments has been amended or modified prior pursuant to the date of this Agreement Commitment Letter, other than as expressly set forth in any manner that would adversely impact the availability of, or add additional conditions precedent Commitment Letter. Subject to the availability terms and conditions of the Commitment Letter, the net proceeds contemplated from the Financing, andtogether with other financial resources of Parent, as including contemplated cash on hand of Parent, will, in the aggregate, be sufficient for the satisfaction of all of Parent’s and Purchaser’s obligations under this Agreement, including the payment of the consideration in the Offer and the Merger Consideration and all fees and expenses reasonably expected to be incurred in connection therewith. As of the date of this Agreement, (i) no such amendment event has occurred which would constitute a material breach or modification is contemplated default (other thanor an event which with notice or lapse of time or both would constitute a default) on the part of Parent under the Commitment Letter or, for the avoidance of doubt, amendments to the draft credit agreement contemplated therebyknowledge of Parent, any other party to the Commitment Letter, and amendments or joinders (ii) subject to the satisfaction of the Offer Conditions, Parent does not have any reason to believe that any of the conditions to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents will not be satisfied or similar entities as parties thereto who had not executed that the full amount of the Financing Commitments as and any other funds necessary for the satisfaction of the date hereof), all of Parent’s and as of the date of Purchaser’s obligations under this Agreement and the commitments contained payment of all fees and expenses reasonably expected to be incurred in connection therewith will not be available to Parent on the Financing Commitments have not been withdrawn or rescinded in any respect.
(b) Offer Closing Date. Except for fee letters (complete copies with respect to fees and related arrangements with respect to the Financing, of which have been provided Parent has delivered a true, correct and complete copy to Seller; providedthe Company prior to the date hereof (other than with respect to redacted fee information, howeverbut which fee information does not relate to the amounts or conditionality of, that or contain any such fee letter may redacted as to economic and “flex” termsconditions precedent to, none of which would reduce the amount funding of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing DateFinancing), as of the date hereof there are no side letters or contracts to which Purchaser other agreements, Contracts or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereof, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies arrangements related to the funding of the full amount of the Financing, Financing other than as expressly set forth in the Financing Commitment Documents Letter and delivered to Seller the Company prior to the date hereof. As of Parent has fully paid all commitment fees or other fees required to be paid on or prior to the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default or breach on the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability of the Financing on the Closing Date, (ii) constitute a failure to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and in connection with the satisfaction of the other conditions set forth in Sections 8.1, 8.2 and 8.3, SigmaTEK and Purchaser have no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition to the Closing or any of its other obligations under this Agreement that Purchaser obtains the Financing or any other financing for or related to any of the transactions contemplated herebyFinancing.
Appears in 1 contract
Financing. (a) As of Parent and Merger Sub shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate and obtain the date hereofFinancing on the terms and conditions described in the Financing Commitments, Purchaser has delivered including using reasonable best efforts to Seller true and correct copies of (i) the executed commitment letter, dated as of the date hereof, among Purchaser, SigmaTEK Systems, LLC (“SigmaTEK”) and maintain in effect the Financing Sources thereto Commitments, (including all exhibitsii) negotiate definitive agreements with respect to the Debt Financing on terms and conditions (including, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (collectivelyas necessary, the “flex” provisions contained in the redacted fee letter accompanying the Debt Financing Letter) as specified in the Debt Financing Letter (any such agreements, the “Definitive Debt Agreements”), (iii) satisfy on a timely basis (or obtain the waiver of) all conditions that are applicable to Parent or Merger Sub in the Debt Financing Commitment Documents”or the Definitive Debt Agreements, as applicable, and comply with its obligations thereunder, and (iv) upon the satisfaction or waiver of such conditions, consummate the Debt Financing at or prior to the Effective Time. In furtherance and not in limitation of the foregoing, in the event that all conditions to the Debt Financing Letter (and if Definitive Debt Agreements have been entered into, to such respective Definitive Debt Agreements) in each case, other than the availability of any of the financing contemplated under the Equity Financing Letter, have been satisfied or waived or upon the funding will be satisfied, and all of the conditions set forth in Section 8.1 (with respect to any funding of Debt Financing to occur at the Closing) have been satisfied or waived (other than those conditions that by their terms are to be satisfied at the closing of the Debt Financing, the Offer Closing or the Closing, as applicable), Parent and Merger Sub shall use their reasonable best efforts to enforce their rights under the Debt Financing Letter and Definitive Debt Agreements, as the case may be, including by suit or other appropriate proceeding.
(b) Parent shall have the right from time to time to amend, modify or replace the Financing Commitments; provided, howeverthat Parent shall not, that without the prior written consent of the Company, agree to, or permit, any amendment, modification or replacement of, or waiver under, the Financing Commitments or the definitive agreements relating to the Financing Commitments if such Financing Commitment Documents may be redacted as to economic and “flex” termsamendment, none of which modification, replacement or waiver would (A) reduce the aggregate amount of the Financing (unless the Debt Financing or the Equity Financing is increased by a corresponding amount), (B) impose new or additional conditions or expand or amend any of the conditions precedent or contingencies to be funded the funding on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject to the terms and conditions set forth therein, to lend the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portion, the “Financing”). None of the Financing Commitments has been amended or modified prior to the date of this Agreement in any manner that would adversely impact reasonably be expected to (1) prevent, impede or delay the availability of, or add additional conditions precedent to the availability consummation of the Financing, andthe Offer Closing or the Closing, as (2) make the funding of the date Financing less likely to occur, or (3) adversely impact the ability of this Agreement, no such amendment or modification is contemplated (the Parent to enforce its rights against the other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders parties to the Financing Commitments solely or the definitive documents with respect thereto, or (C) reasonably be expected to (1) prevent, impede or delay the consummation of the Financing, the Offer Closing or the Closing, (2) make the funding of the Financing less likely to occur, or (3) adversely impact the ability of the Parent to enforce its rights against the other parties to the Financing Commitments or the definitive documents with respect thereto, without the prior consent of the Company; provided, further, that notwithstanding the foregoing, Parent may amend the Debt Financing Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Debt Financing Commitments as of the date hereof), and Letter as of the date of this Agreement if the commitments contained addition of such parties individually or in the Financing Commitments have aggregate would not been withdrawn or rescinded in any respect.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as of the date hereof there are no side letters or contracts to which Purchaser or SigmaTEK is a party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereof, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) constitute a default delay or breach on prevent the part of SigmaTEK or Purchaser under the Financing Commitment Documents that would impair the availability consummation of the Debt Financing on or the Closing DateOffer Closing. Parent shall deliver to the Company copies of any such amendment, (ii) constitute a failure modification, replacement or waiver promptly upon its execution thereof. If, notwithstanding the use of reasonable best efforts by Buyer to satisfy a condition precedent to the availability of the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable on the Closing Date, so long as the conditions to the Financing are satisfied and each condition set forth in Section 8.2 is satisfied. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 8.2(a) is satisfied, the performance by Seller of its obligations under this Agreement and the satisfaction Section 7.15(a), any portion of the other Debt Financing or Definitive Debt Documents is terminated or expires or otherwise becomes unavailable on the terms and conditions set forth (including the “flex” provisions contained in Sections 8.1the redacted fee letter accompanying the Debt Financing Letter) specified in the Debt Financing Letter or the Definitive Debt Agreements, 8.2 Parent shall promptly notify the Company and 8.3shall use its reasonable best efforts to arrange and obtain alternative financing from the same and/or alternative sources on terms and conditions not less favorable, SigmaTEK taken as a whole, to Parent, than those contained in the Debt Financing Letter (“Alternative Financing”), upon terms and Purchaser conditions which would not have no reason to believe that any of the effects specified in clauses (A), (B) and (C) of this Section 7.15(a) as promptly as reasonably practicable following the occurrence of such event. Parent shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange the Financing and to satisfy the conditions thereof, including (1) giving the Company prompt written notice of any material adverse change with respect to the Debt Financing, including if at any time the Debt Financing Letter expires or is terminated for any reason or if any financing source party to the Debt Financing Letter notifies Parent that such source no longer intends to provide financing to Parent on the terms set forth therein, and (2) upon the Company’s reasonable request, advising and updating the Company, in a reasonable level of detail, with respect to status and proposed funding date. For purposes of this Agreement, references to “Financing” and “Debt Financing” and “Definitive Debt Agreements” shall include the financing contemplated by the Debt Financing Commitments applicable Letter as permitted by this Section 7.15(a) to it will not be satisfied on the Closing Date. Purchaser affirms that it is not a condition amended, modified or replaced and references to the Closing “Debt Financing Letter” shall include such documents as permitted by this Section 7.15(a) to be amended, modified or any of its other obligations under this Agreement that Purchaser obtains the Financing replaced, in each case from and after such amendment, modification, or any other financing for or related to any of the transactions contemplated herebyreplacement.
Appears in 1 contract
Sources: Merger Agreement (Campbell Thomas J)
Financing. (a) As of Parent and Merger Sub shall use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary to arrange, obtain and consummate the date hereofDebt Financing (including, Purchaser has delivered if applicable, any Substitute Debt Financing) on or prior to Seller true and correct copies of the time at which the Closing is required to occur pursuant to Section 2.2, including using its reasonable best efforts to (i) (A) maintain in effect the executed commitment letterDebt Letters and comply with all of their respective covenants and obligations thereunder, dated as of (B) negotiate and, assuming all conditions to Closing set forth in Section 8.1 and Section 8.2 have been satisfied, enter into and deliver definitive agreements with respect to the date hereofDebt Financing reflecting the terms and conditions contained in the Debt Letters (including any “flex” provisions), among Purchaserso that such agreements are in effect no later than the time at which the Closing is required to occur pursuant to Section 2.2, SigmaTEK Systems, LLC and (“SigmaTEK”C) enforce their rights under the Debt Letters and (ii) satisfy (or obtain a waiver of) on a timely basis all the conditions to the Debt Financing and the Financing Sources definitive agreements related thereto that are in Parent’s (including or its Affiliates’) control. In the event that all exhibitsconditions set forth in Article VIII have been satisfied or waived or, schedules, and annexes theretoupon funding shall be satisfied or waived, and the executed fee letter associated therewith Closing should otherwise occur pursuant to Section 2.2, Parent and referenced therein its Affiliates shall use their reasonable best efforts to cause the Persons providing the Debt Financing (collectively, the “Debt Financing Commitment DocumentsParties”) (provided, however, that such to fund the Debt Financing Commitment Documents may be redacted as to economic and “flex” terms, none of which would reduce the amount of the Financing to be funded on at the Closing Date or adversely affect the conditionality or availability of the Financing contemplated thereby on the Closing Date), as may be amended or modified in accordance with the terms hereof, collectively, of the “Financing Commitments”), pursuant to which Debt Letters and the Financing Sources party thereto have committed, subject definitive agreements related to the terms and conditions set forth therein, to lend the amounts set forth therein, a portion of which shall be used for the purposes of funding the purchase of the Purchased Equity and the other transactions contemplated by this Agreement and paying the related fees and expenses specified herein (such portion, the “Debt Financing”). None of the Financing Commitments has been amended or modified prior to the date of this Agreement in any manner that would adversely impact the availability of, or add additional conditions precedent to the availability of the Financing, and, as of the date of this Agreement, no such amendment or modification is contemplated (other than, for the avoidance of doubt, amendments to the draft credit agreement contemplated thereby, and amendments or joinders to the Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Financing Commitments as of the date hereof), and as of the date of this Agreement the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect.
(b) Except for fee letters (complete copies of which have been provided to Seller; provided, however, that any such fee letter may redacted as to economic and “flex” terms, none of which would reduce Parent shall keep the amount Company reasonably informed on a reasonably current basis of the Financing to be funded on the Closing Date or adversely affect the conditionality or availability status of the Debt Financing contemplated thereby on and material developments with respect thereto as may reasonably be requested by the Closing Date)Company. Without limiting the foregoing, as Parent shall promptly (and in any event within two Business Days) after obtaining Knowledge thereof, give the Company written notice of the date hereof there are no side letters any (i) material breach or contracts to which Purchaser material default by Parent, its Affiliates, any Debt Financing Party or SigmaTEK is a any other party that impose conditions, affect the availability of or modify, amend or expand the conditions to the funding of the Financing Debt Letters or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to Seller prior to the date hereof. Purchaser and SigmaTEK have fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereof, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Purchaser and SigmaTEK and, to the knowledge of Purchaser, each of the other parties thereto (except, in each case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity)). As of the date hereof, there are no conditions precedent or other contingencies definitive document related to the funding of the full amount of the Financing, other than as expressly set forth in the Debt Financing Commitment Documents delivered to Seller prior to the date hereof. As of the date hereof, no (or any event has occurred whichor circumstance, with or without notice, lapse of time time, or both, would give rise to any such breach or default), (ii) receipt by Parent of any written notice of any threatened or actual withdrawal, repudiation, expiration or termination of the Debt Letters or the Debt Financing, (iii) material dispute or material disagreement between or among any parties to the Debt Letters or any definitive document related to the Debt Financing (other than ordinary course negotiations related to the Debt Financing) that Parent in good faith believes may lead to a Financing Failure or (iv) if for any reason Parent in good faith no longer believes it will be able to obtain all or any portion of the Debt Financing necessary to consummate the Merger at the Effective Time. Parent may amend, supplement, modify, terminate, assign or agree to any waiver under the Debt Letters without the prior written approval of the Company; provided that Parent shall not, without the Company’s prior written consent, permit any such amendment, supplement, modification, termination, assignment or waiver to be made to, or consent to or agree to any waiver of, any provision of or remedy under the Debt Letters which would (A) reduce the aggregate amount of the Debt Financing (including by increasing the amount of fees to be paid or original issue discount but excluding the exercise of any “flex” contemplated by the Debt Letters as in effect on the date hereof and any termination or reduction of the commitments in respect of any bridge facility pursuant to the express terms of the Debt Letters as in effect on the date hereof to the extent the amounts so terminated or reduced are replaced on a dollar-for-dollar basis by the issuance of debt securities contemplated by the Debt Commitment Letter in lieu thereof), (B) impose new or additional conditions to the Debt Financing or otherwise expand, amend or modify any of the conditions to the Debt Financing or (C) otherwise expand, amend, supplement, modify, terminate, assign or waive any provision of the Debt Letters or Debt Financing, in a manner that in the case of clause (B) or clause (C) would reasonably be expected to (iI) constitute a default delay, prevent or breach on make less likely the part consummation of SigmaTEK the Merger or Purchaser the funding of the Debt Financing (or satisfaction of the conditions to the Debt Financing) at the Closing, (II) adversely impact the ability of Parent to enforce its rights against the Debt Financing Parties or any other parties to the Debt Letters or the definitive agreements with respect thereto or (III) adversely affect the ability of Parent to timely consummate the Merger and the other transactions contemplated hereby and to pay the Merger Amounts and provided, further, that the Debt Letters may be amended to add additional Debt Financing Parties who are not parties to the Debt Letters as of the date hereof. Parent shall not, without Company’s prior written consent, permit any such amendment, supplement, modification, termination, assignment or waiver to be made to, or consent to or agree to any waiver of, any provision of or remedy under the Equity Commitment Letter. In the event that new commitment letters or fee letters are entered into in accordance with any amendment, supplement, other modification, termination, replacement, assignment or waiver of the Financing Commitment Documents that would impair Letters permitted pursuant to this Section 7.3, such new commitment letters or fee letters shall be deemed to be a part of the availability “Equity Financing” or “Debt Financing”, as applicable, and deemed to be the “Equity Commitment Letter”, “Debt Commitment Letter”, “Fee Letter” and “Financing Commitment Letters”, as applicable, for all purposes of this Agreement. Parent shall promptly after execution thereof (and in any event no later than one Business Day thereafter) deliver to the Company true, correct and complete copies of any amendment, supplement, other modification, termination, replacement, assignment or waiver of the Financing Commitment Letters. If funds in the amounts set forth in the Debt Letters, or any portion thereof, become unavailable, Parent and Merger Sub shall, and shall cause its controlled Affiliates, including any applicable financing affiliates, as promptly as practicable following the occurrence of such event to, (x) notify the Company in writing thereof, (y) use their respective reasonable best efforts to obtain substitute financing (on terms and conditions that are not less favorable to Parent, taken as a whole, than the Closing Dateterms and conditions as set forth in the Debt Letters, taking into account any “market flex” provisions thereof), including from alternative sources, in an amount sufficient, when added to the portion of the Debt Financing that is available, to enable Parent to consummate the Merger and the other transactions contemplated hereby and to pay the Merger Amounts (the “Substitute Debt Financing”) and (z) use their respective reasonable best efforts to obtain a new financing commitment letter that provides for such Substitute Debt Financing and, promptly after execution thereof (and, in any event, no later than one Business Day thereafter), deliver to the Company true, complete and correct copies of the new commitment letter and the related fee letters (redacted in the same manner as permitted under Section 4.6(a)) and related Financing Documents with respect to such Substitute Debt Financing. Upon obtaining any commitment for any such Substitute Debt Financing, such financing shall be deemed to be a part of the “Debt Financing” and any commitment letter and related fee letters for such Substitute Debt Financing shall be deemed the “Debt Commitment Letter”, “Fee Letter” and “Debt Letters”, as applicable, for all purposes of this Agreement.
(c) Notwithstanding anything contained in this Agreement to the contrary, (i) Parent and Merger Sub expressly acknowledge and agree that neither Parent’s nor Merger Sub’s obligations hereunder are conditioned in any manner upon Parent or Merger Sub obtaining the Equity Financing, Debt Financing, any Substitute Debt Financing or any other financing and (ii) constitute the Company acknowledges and agrees that a breach of the foregoing clauses (a) or (b) shall not result in the failure to satisfy of a condition precedent to the availability of Company’s obligations under this Agreement if (notwithstanding such breach) Parent and Merger Sub are willing and able to consummate the Financing on the part of SigmaTEK or Purchaser or, (iii) to the knowledge of Purchaser, result in the Financing being unavailable Merger on the Closing Date.
(d) The Company and its Subsidiaries shall use their reasonable best efforts to, so long and shall use their reasonable best efforts to cause their Representatives to use their reasonable best efforts to, provide to Parent such customary cooperation as may be reasonably requested by Parent to assist Parent in arranging, obtaining and syndicating the conditions Debt Financing (including any debt securities contemplated by the Debt Commitment Letter), including:
(i) preparation and delivery to Parent and its Debt Financing Source Parties of the Financing are satisfied and each condition set forth in Section 8.2 Information that is satisfied. As Compliant as promptly as reasonably practicable following Parent’s request therefor (it being understood that Parent hereby acknowledges receipt of the date hereoffinancial statements, assuming the accuracy pursuant to clause (a)(i) and (a)(ii) of the representations definition thereof, for each of the three years in the period ended December 31, 2020 and warranties set forth for the fiscal quarters ended March 31, 2021 and 2020);
(ii) assisting in Article IV such that preparation for and, upon reasonable advance notice and at reasonable times, having appropriate senior management of the condition set forth in Section 8.2(a) is satisfiedCompany and its Subsidiaries with appropriate seniority and expertise participate 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 performance Debt Financing (including any debt securities contemplated by Seller of its obligations under this Agreement the Debt Commitment Letter)), rating agency presentations, road shows and the satisfaction due diligence sessions (including accounting due diligence sessions) and assisting Parent in obtaining ratings (but not any specific ratings) in respect of the relevant borrower, issuer or parent guarantors under the Debt Financing (including any debt securities contemplated by the Debt Commitment Letter) and public ratings in respect of any debt issued as part of the Debt Financing (including any debt securities contemplated by the Debt Commitment Letter);
(iii) assisting Parent and its potential financing sources in the preparation of (A) customary bank information memoranda (including a customary “public” and “private side” version), customary offering memoranda (including a preliminary and final offering memorandum that is suitable for use in a customary “high-yield road show”), customary offering documents and other conditions set forth in Sections 8.1, 8.2 customary disclosure and 8.3, SigmaTEK and Purchaser have no reason to believe that similar marketing documents for any of the conditions to the Debt Financing (including any debt securities contemplated by the Debt Commitment Letter) and (B) customary materials for rating agency presentations for the Debt Financing Commitments (including any debt securities contemplated by the Debt Commitment Letter);
(iv) using reasonable best efforts to cause its independent registered public accounting firm to provide customary assistance with the due diligence activities of Parent and the Debt Financing Parties and the preparation of the customary disclosure and marketing materials referred to in clause (iii) above, and using reasonable best efforts to cause its independent registered accounting firm to provide customary consents to the use of audit reports in any disclosure and marketing materials relating to the Debt Financing (including any debt securities contemplated by the Debt Commitment Letter) and related government filings and using reasonable best efforts to furnish the information necessary to enable the applicable accountants to it deliver customary “comfort” letters (including “negative assurance” comfort);
(v) (A) cooperating with Parent’s efforts in respect of the prepayment or repayment of the Company Notes, the Senior Credit Facility and the Securitization Facility in connection with the Debt Financing and cooperating with any 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), including by delivering the Payoff Letters and (B) to the extent that all or a portion of the Company Notes will not be repaid, defeased or satisfied and discharged at Closing, using reasonable best efforts to cooperate with Parent’s efforts to comply with any covenant in the Company Indenture or Company Notes that requires that the Company Notes be secured on a ratable basis with the Debt Financing (it being understood that any legal opinions required in connection therewith shall be provided by Parent’s counsel);
(vi) executing and delivering customary authorization letters in connection with the disclosure and marketing materials relating to the Debt Financing authorizing the distribution of information relating to the Company and its Subsidiaries to prospective lenders and identifying any portion of such information that constitutes material, nonpublic information regarding the Company or its Subsidiaries or their respective securities (in each case in accordance with customary syndication practices) and containing a representation that (to the extent accurate) the public-side version does not include material nonpublic information about the Company and its Subsidiaries or their respective securities;
(vii) executing and delivering as of, but not effective before, the Effective Time, customary Financing Documents as may be reasonably requested by Parent, including credit agreements, high-yield purchase agreements, indentures, pledge and security documents, guarantees, customary officer’s certificates (other than a solvency certificate), instruments, filings and security agreements, required in connection with the Debt Financing, including delivering the Financing Deliverables;
(viii) assisting with the preparation of a customary borrowing base certificate relating to the borrowing base contemplated by the Debt Commitment Letter, using reasonable best efforts to deliver applicable supporting information and documentation and assisting with, and providing reasonable cooperation with respect to, customary appraisals and field exams;
(ix) assisting with the delivery of customary officer’s certificates on or prior to the Closing Date with respect to information included in any preliminary or final offering memorandum used for a private placement of debt securities of the Company in connection with the Debt Financing; and
(x) at least three Business Days prior to the Closing Date. Purchaser affirms that it is not a condition , providing all documentation and other information relating to the Company and its Subsidiaries mutually agreed to be required by applicable “know your customer” and anti-money laundering rules and regulations including the USA PATRIOT Act and the Beneficial Ownership Regulation to the extent reasonably requested by Parent at least 10 Business Days prior to the Closing Date; provided that (i) no such cooperation shall be required to the extent that it would (A) require the Company to take any action that in the good faith judgment of the Company unreasonably interferes in any material respect with the ongoing business or operations of the Company or its Subsidiaries, (B) require the Company or any of its Subsidiaries to incur any fee, expense or other obligations under liability prior to the Effective Time for which it is not promptly reimbursed or indemnified by Parent pursuant to the final sentence of this Agreement that Purchaser obtains clause (d), (C) cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement, (D) be reasonably expected to cause any director, officer or Employee of the Financing Company or any other financing for of its Subsidiaries to incur any personal liability or related (E) cause any breach of any applicable Law or any Material Contract to which the Company or any of its Subsidiaries is a party and (ii) the transactions contemplated hereby.Company and its Subsidiaries shall not be required to enter into, execute, or approve any agreement or other documenta
Appears in 1 contract
Sources: Merger Agreement (Domtar CORP)