Financing. (a) Subject to the terms and conditions of this Agreement, AGCO shall use its reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth in the Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced. (b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period. (c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing. (d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include: (i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed; (ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant; (iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business; (iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings; (v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and (vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputation
Appears in 4 contracts
Sources: Sale and Contribution Agreement (Trimble Inc.), Sale and Contribution Agreement (Trimble Inc.), Sale and Contribution Agreement (Agco Corp /De)
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO Purchaser shall use its reasonable best efforts to obtain the Committed Debt Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth described in the Debt Commitment Letter (including Letters and any “flex” provisions in the related Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO Letters. Purchaser shall not permit any amendment amendment, modification or modification supplement to be made to, or any waiver of any provision or remedy under, the Debt Commitment Letter Letters or the any related Fee Letter (or following entry into definitive documents relating to the Committed FinancingLetter, such definitive documents) if such amendment, modification or waiver (Ai) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Debt Financing (including by increasing changing the amount of fees to be paid or original issue discount unless discount), when taken together with Purchaser’s cash on hand, to an amount below the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available required to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A))satisfy Purchaser’s obligations under this Agreement, or (Bii) imposes new or additional conditions or other terms or otherwise expands, amends or modifies any of the conditions to the Committed Financing, receipt of the Debt Financing or other terms in a manner that would, in the case of this subclause (B), could reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (or prevent the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”)Closing; provided, however, that subject to compliance Purchaser may, after consultation with the other provisions of this Section 7.15Seller, AGCO may replace or amend the Debt Commitment Letter or such definitive documents Letters to correct typographical errors, add additional lenders, arrangers and lead arrangers, bookrunners, syndication agents or reallocate commitments similar entities who had not executed the Debt Commitment Letters as of the date hereof so long as such action would not reasonably be expected to materially delay or assign or reassign titles or roles toprevent the Closing; provided, further, that the exercise of any “flex” provisions in the Fee Letter shall not be considered an expansion, amendment, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies modification of any such amendment, modification of the conditions to the receipt of the Debt Financing or replacementother terms in a manner that could reasonably be expected to delay in any material respect or prevent the Closing. For purposes of Any reference in this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references Agreement to (x) “Committed Debt Financing” shall include the financing contemplated by the Debt Commitment Letter (Letters as amended or definitive financing documents related thereto) as permitted by modified in compliance with this Section 7.15(a7.14 and (y) to be amended, modified or replaced “Fee Letter” and references to “Debt Commitment LetterLetters” shall include such document documents as permitted by amended or modified in compliance with this Section 7.15(a) to be amended, modified or replaced7.14.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputation
Appears in 3 contracts
Sources: Membership Interest Purchase Agreement, Membership Interest Purchase Agreement (Gaiam, Inc), Membership Interest Purchase Agreement (Sequential Brands Group, Inc.)
Financing. True, correct and complete copies of the debt commitment letter dated the date of this Agreement from affiliates of each of Credit Suisse and Deutsche Bank (athe “Commitment Letter”) Subject providing for debt financing as described therein (the “Financing”), subject to the terms and conditions set forth therein are attached hereto as Exhibit B, which Commitment Letter includes a commitment to fund any payment made by Parent or Merger Sub pursuant to Section 7.3. The Commitment Letter is in full force and effect and is valid and enforceable against the parties thereto in accordance with its terms, subject, as to enforceability, to bankruptcy, insolvency, reorganization, moratorium and other laws of general applicability relating to or affecting creditors’ rights and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). The aggregate proceeds contemplated to be provided by the Commitment Letters will be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration (including in connection with the provisional conversion of the 5% Preferred Stock into Company Common Stock prior to the Merger), the aggregate Option Consideration, any repayment or refinancing of debt contemplated in the Commitment Letter and fees and expenses of Parent, Merger Sub and their respective Representatives incurred in connection with the Transactions (collectively, the “Required Amounts”). The obligations of the financing sources to fund the commitments under the Commitment Letter are not subject to any conditions other than as set forth in the Commitment Letter. As of the date of this Agreement, AGCO shall use its reasonable best efforts to obtain the Committed Financing knowledge of Parent, no event has occurred that (taking into account with or without notice, lapse of time, or both) would constitute a breach or default under the Commitment Letter by Parent or Merger Sub. Parent has no knowledge of any reductions thereof pursuant facts or circumstances that are reasonably likely to Section 7.15(b)(A)result in (i) on any of the terms and conditions set forth in the Commitment Letter not being satisfied or (including any “flex” provisions in ii) the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that funding contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand being made available to AGCO, Parent on a timely basis in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, order to consummate the Committed Financing at or prior to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources transactions contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative FinancingAgreement.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputation
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (Hexion Specialty Chemicals, Inc.), Merger Agreement (Huntsman International LLC)
Financing. (a) Subject to the terms Each of Purchaser and conditions of this Agreement, AGCO Parent shall use its their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange, consummate and obtain the Committed proceeds of the Debt Financing, including using their respective reasonable best efforts to: (i) assert (other than through litigation) its rights under the Debt Commitment Letter in the event of a breach thereof by the Debt Financing Sources (as defined in Section 7.3(h)) thereunder, (ii) enter into Financing Agreements with respect thereto, (iii) satisfy, or cause their Representatives to satisfy, on a timely basis all conditions applicable to, and within the control of, Parent, Purchaser or their respective Representatives in such definitive agreements, and (iv) upon the satisfaction of the Purchaser’s obligation to consummate the Offer or the Merger, as applicable, consummate the Debt Financing, at the Offer Closing (with respect to amounts required to consummate the Offer) and the Merger Closing (with respect to amounts required to consummate the Merger); provided that under no circumstances shall Parent or Purchaser be required to commence, participate in or pursue any Legal Proceeding against or involving any of Financing Source or any other Person that has committed to provide any portion of, or otherwise with respect to, the Debt Financing.
(b) Neither Purchaser nor Parent shall agree to any amendments or modifications to, or grant any waivers of, any condition or other provision or remedy under the Debt Commitment Letter or Financing Agreements without the prior written consent of the Company (which may be granted or withheld in the Company’s sole discretion), if such amendments, modifications or waivers would (i) reduce the aggregate amount of aggregate cash proceeds available from the Debt Financing below the amount (after taking into account any reductions thereof pursuant consideration the funds otherwise expected to Section 7.15(b)(A)be available to Parent) on that is required to consummate the terms Offer, the Merger and conditions set forth in the other transactions contemplated by this Agreement and to repay or refinance the debt contemplated to be replaced under the Debt Commitment Letter (including any “flex” provisions fees, premiums and expenses payable in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)connection therewith), or (Bii) imposes impose new or additional conditions precedent or otherwise expands, amends or modifies any of the conditions to the Committed Financing, precedent in a manner that wouldadverse to Purchaser, Parent or the Company, in each case, solely to the case of this subclause (B), extent that such amendment or modification would be reasonably be expected likely to (xA) prevent or materially delay or impair the Closing or ability of Purchaser and Parent to consummate the availability of Offer, the Committed Financing on Merger and the Closing Date taking into account the expected timing of the Closing Dateother Transactions, taking into account the expected timing of the Marketing Period, or (yB) adversely impact the ability of AGCO Purchaser or Parent to enforce its rights or remedies against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Debt Commitment Letter or such definitive documents Financing Agreements or (C) make the timely funding of the Debt Financing or satisfaction of the conditions precedent to correct typographical errorsobtaining the Debt Financing any less likely to occur.
(c) Notwithstanding anything to the contrary contained in this Agreement, add additional lenders, arrangers Parent and agents Purchaser shall have the right to substitute other debt or reallocate commitments equity financing for all or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies portion of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Debt Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Debt Commitment Letter (or definitive from the same and/or alternative Financing Sources so long as such substitute financing documents related thereto) is subject to funding conditions that are not less favorable to Parent and Purchaser than the funding conditions set forth in the Debt Commitment Letter and so long as permitted by this Section 7.15(a) such substitute financing would not adversely impact the ability of Parent and Purchaser to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedconsummate the Transactions on a timely basis.
(bd) AGCO In the event that any portion of the Debt Financing becomes unavailable in the manner or from the sources contemplated in the Debt Commitment Letter or Financing Agreements, (i) Parent shall promptly (but in any event within one (1) Business Day) so notify the Company in writing and (ii) Purchaser and Parent shall use its their respective commercially reasonable best efforts (taking into account the anticipated timing of the Closing Date to arrange and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on handobtain, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, to negotiate and enter into definitive agreements with respect to, alternative financing from the same or alternative financial institutions in an amount (after taking into consideration the funds otherwise expected to be available to Parent) equal to the Committed Financing lesser of (i) an aggregate amount sufficient to consummate the Offer, the Merger and the other transactions contemplated by this Agreement, and (ii) the amount of financing that was contemplated by the Commitment Letter on the terms and conditions contained in the Debt Commitment Letter (including the “flex” provisions included any fees, premiums and expenses payable in the Fee Letterconnection therewith) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day date of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and this Agreement as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document neither Purchaser nor Parent shall be effective until the Closing other than required to obtain, negotiate or enter into any Financing Agreements with respect to any Debt Financing on terms and conditions that are materially less favorable, in the case of aggregate, to Purchaser and Parent than those in the authorization and representation letters Debt Commitment Letter (taking into account any flex provisions). The definitive agreements entered into in connection with any Debt Financing or Alternative Financing, as applicable, are referred to in clause this Agreement, collectively, as the “Financing Agreements.” In the event any alternative or substitute financing (iian “Alternative Financing”) aboveis obtained in accordance herewith, and (yA) any reference in this Agreement to the directors, officers and managers of Trimble and its Subsidiaries “Debt Financing” shall not be required to deliver such certificates or adopt resolutions approving mean the financing documentscontemplated by such Alternative Financing as permitted to be modified pursuant to this Section 5.12, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering if a new financing commitment letter is entered into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant such Alternative Financing (the “New Commitment Letter”), references in this Agreement to the terms hereof, including obtaining customary lien release letters Debt Commitment Letter (except for purposes of Section 4.9) shall be deemed to include the New Commitment Letter and related termination filings;
(vany other Debt Commitment Letter(s) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing that are not superseded by the Financing Sources New Commitment Letter at least six the time in question. Without first obtaining the Company’s prior written consent (6) Business Days prior to the Closing Date about the Company which shall not be unreasonably withheld, conditioned or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) abovedelayed), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date neither Purchaser nor Parent shall directly or (D) be required to indirectly take any action that will would, or would be reasonably expected to, adversely impact the ability of Parent to satisfy the Financing Proceeds Condition.
(xe) conflict with or violate ▇▇▇▇▇▇▇’▇ Parent shall (i) furnish the Company complete, correct and executed copies of the Financing Agreements or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not alternative financing agreement entered into in contemplation accordance with this Section 5.12 promptly upon their execution, (ii) give the Company prompt written notice of any breach or threatened breach of which either Purchaser or Parent is or becomes aware by any party of any of the provisions Debt Commitment Letter or the Financing Agreements of which Purchaser or Parent is or becomes aware or any termination or threatened termination thereof, and (iii) otherwise keep the Company reasonably informed in this Section 7.15(d). Trimble hereby consents to a timely manner of the reasonable use status of its and its Subsidiaries’ trademarks and logos in connection with efforts to arrange the Available Debt Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputation.
Appears in 3 contracts
Sources: Merger Agreement (Hyperion Therapeutics Inc), Merger Agreement (Horizon Pharma PLC), Merger Agreement (Hyperion Therapeutics Inc)
Financing. (a) Subject ADI shall deliver to Artistic on or before the date (which shall be no later than five Business Days after it has been cleared by the Securities and Exchange Commission (it being understood that Artistic will notify ADI of such clearance promptly)) (the "Mailing Date") on which the Proxy Statement (as defined in the Merger Agreement) is scheduled to be mailed to the terms stockholders of Artistic true and conditions of this Agreement, AGCO shall use its reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth in the Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any each Proposal Letter which shall be in full force and effect at such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedtime.
(b) AGCO shall use its reasonable best efforts (taking into account In the anticipated timing of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent event that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing provided for in the Proposal Letters has become unavailable at or prior to the Mailing Date, regardless of fault, ADI shall deliver to Artistic within 10 Business Days of the Mailing Date, proposal, commitment or similar letters from others providing for the financing necessary for the consummation of the transactions contemplated hereby, on the and subject to terms and conditionsconditions no less favorable to ADI in the aggregate than provided for in the Proposal Letters.
(c) During the period from the Mailing Date through the Closing Date, in the manner event that all or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result provided for in the Proposal Letters becomes unavailable, regardless of any reductions thereof permitted under Section 7.15(b))fault, or if any portion ADI shall deliver to Artistic within 30 days of the Committed Financing otherwise becomes unavailable date that such financing became unavailable, proposal, commitment or similar letters from others providing for the financing necessary for the consummation of the transactions contemplated hereby, on the and subject to terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially no less favorable to AGCO (or its Subsidiaries), as determined ADI in the reasonable judgment of AGCO, aggregate than the terms and conditions set forth provided for in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as Proposal Letters. ADI shall keep Artistic promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies informed of all written agreements, arrangements or contracts (including any side letters or (subject material developments with respect to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative the Financing.
(d) Prior to ADI intends that the Closing, Trimble terms and conditions of the Financing shall be no less favorable taken as a whole than those previously set forth in the Proposal Letters or any replacement letters. ADI shall use its reasonable best efforts to provide satisfy at or before the Closing all conditions to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and transactions constituting the Financing Sources, in each case, in connection with and to its drawing down the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputationcash proceeds thereunder.
Appears in 3 contracts
Sources: Asset Purchase Agreement (Artistic Greetings Inc), Asset Purchase Agreement (Artistic Greetings Inc), Asset Purchase Agreement (Artistic Greetings Inc)
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO each of Parent and Merger Sub shall use its reasonable best efforts to (i) obtain the Committed Debt Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions described in the Debt Commitment Letter or on other terms no less favorable, in aggregate, to Parent and Merger Sub than those described in the Debt Commitment Letter, (ii) maintain in effect the Debt Commitment Letter in accordance with its terms until the Transactions are consummated, (iii) satisfy, or cause to be satisfied, on a timely basis all conditions to the closing of and funding under the Debt Commitment Letter applicable to Parent and/or Merger Sub that are within its control, including paying when due all commitment fees and other fees arising under the Financing Documents as and when they become due and payable thereunder, (iv) consummate the Financing at or prior to the Effective Time, and (v) subject to Section 9.08, enforcing the obligations of the parties to the Debt Commitment Letter to the extent necessary to fund the Merger Consideration; provided, that Parent and/or Merger Sub may amend or modify the Debt Commitment Letter, and/or elect to replace all or any portion of the Debt Financing or increase the amount of debt financing to be obtained with alternative debt financing on terms and with conditions not materially less favorable, in the aggregate, than the terms and conditions as set forth in the Debt Commitment Letter as in effect on the date of this Agreement or as amended or modified in accordance with Section 6.07(b) (including the “Alternative Financing”), in each case so long as (A) the aggregate proceeds of the Debt Financing (as amended or modified) and/or the Alternative Financing, together with the aggregate proceeds of the Equity Financing, will be sufficient for Parent and the Surviving Company to pay (i) the Merger Consideration, and (ii) any “flex” provisions other amounts required to be paid in connection with the Fee Letter) or on such other consummation of the Transactions upon the terms and conditions contemplated hereby and (B) such amendment or modification or the Alternative Financing would not prevent, materially delay or materially impede or impair the ability of Parent and Merger Sub to consummate the Transactions. Parent shall deliver to the Company true and complete copies of all Contracts or other arrangements pursuant to which any alternative sources have committed to provide the Alternative Financing (the “Alternative Financing Documents”) as promptly as practicable after execution thereof; provided, that are acceptable such Alternative Financing Documents may be redacted in a customary manner to AGCO so long as such omit fee amounts and the flex provisions provided therein and other information customarily redacted. In the event any portion of the Debt Financing becomes unavailable on the terms and conditions constitute Permitted Financing Termscontemplated in the Debt Commitment Letter, Parent shall promptly notify the Company.
(b) Subject to the terms and AGCO shall conditions of this Agreement, Parent and Merger Sub agree not permit any amendment to amend, modify or modification to be made to, or any waiver of waive any provision underof the Debt Commitment Letter, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver reduces (Aor would reduce) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Debt Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, Debt Financing in a manner that wouldthat, in the case of this subclause (B)each case, reasonably would be expected to (x) prevent or materially delay or otherwise materially adversely affect the Closing ability of Parent or Merger Sub to consummate the Transactions. Parent shall give the Company prompt notice (i) upon becoming aware of any breach of any material provision of the Financing Documents relating to the Equity Financing, the Debt Commitment Letter relating to the Debt Financing or any material Alternative Financing Documents, or termination of any such Financing Document by any party to such Financing Document or (ii) upon the receipt of any written notice from any party to a Financing Document with respect to any threatened breach of any material provision of the Financing Documents relating to the Equity Financing, the Debt Commitment Letter or any material Alternative Financing Documents, or threatened termination of any such Financing Document.
(c) Notwithstanding anything to the contrary contained in this Agreement, nothing contained in this Section 6.07 shall require, and in no event shall the reasonable best efforts of Parent or Merger Sub be deemed or construed to require, either Parent or Merger Sub to pay any fees in excess of, or agree to “market flex” provisions less favorable to Parent, Merger Sub or the availability Surviving Company (or any of their Affiliates) than, those contemplated by the Debt Commitment Letter and/or, if applicable, the Alternative Financing Documents (in each case, whether to secure waiver of any conditions contained therein or otherwise).
(d) The Company agrees to provide, and shall cause each of its Subsidiaries and each of their respective Representatives to provide to Parent and Merger Sub, all cooperation as may be reasonably requested by Parent, Merger Sub or their respective Representatives in connection with the Debt Financing and/or Alternative Financing and the Transactions, including (i) participation in a reasonable number of meetings, presentations, due diligence sessions, road shows, drafting sessions, sessions with rating agencies and other meetings, including arranging for reasonable direct contact between senior management, representatives and advisors of the Committed Company, including the Company’s accountants (subject to execution of such customary non-reliance letters as may be requested by such accountants), or its Subsidiaries with Representatives of Parent or Merger Sub and any lenders, arrangers, underwriters, investors or other sources or prospective sources of Debt Financing on and/or Alternative Financing, in each case upon reasonable prior notice, and so long as such participation and contact is not unduly disruptive to the Closing Date taking into account conduct of the expected timing business of the Company, (ii) assisting in the drafting and preparation of confidential information memoranda, offering memoranda, private placement memoranda, bank information memoranda, offering documents, prospectuses, road show presentations, rating agency presentations and similar documents, business projections, pro forma financial statements and other marketing documents reasonably requested by Parent, Merger Sub or their respective Representatives in connection with the Debt Financing and/or Alternative Financing (including using reasonable best efforts to obtain consents of accountants for use of their reports in any offering documents relating to the Debt Financing and/or Alternative Financing and delivery of customary comfort letters) and furnishing customary authorization letters containing customary representations (including the representation that the historical information provided by the Company and its Subsidiaries for inclusion in any bank information memorandum or lender presentation is accurate and does not include material non-public information about the Company and its Subsidiaries, and designating the information provided by the Company and its Subsidiaries for presentation to the financing sources as suitable to be made available to lenders who do not wish to receive material non-public information) (the “Authorization Letters”), (iii) assisting Parent, Merger Sub and their respective Representatives in obtaining ratings in respect of Parent (or other relevant borrowers) and ratings in respect of any notes or other debt offered or issued as part of the Debt Financing and/or the Alternative Financing, (iv) as promptly as practicable, furnishing Parent, Merger Sub and any sources or prospective sources of Debt Financing and/or Alternative Financing with financial and other pertinent information regarding the Company and its Subsidiaries as may be reasonably requested by Parent or Merger Sub, including (A) audited consolidated balance sheets of the Company and its consolidated Subsidiaries as of December 31, 2015, December 31, 2016 and, when available, December 31, 2017 and audited consolidated statements of operations, comprehensive income (loss) and cash flows of the Company and its consolidated Subsidiaries for each of the fiscal years ended December 31, 2015, December 31, 2016 and, when available, December 31, 2017 and (B) unaudited consolidated balance sheets and consolidated statements of income (loss) and cash flows for the Company and its consolidated Subsidiaries for each subsequent fiscal quarter ended at least forty-five (45) days prior to the Closing Date, taking into account the expected timing in each case of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), prepared in accordance with GAAP (the “Permitted Required Information”), using reasonable best efforts to cause the Company’s independent accountants to provide assistance and cooperation in connection therewith to Parent, Merger Sub and any sources or prospective sources of Debt Financing Termsand/or Alternative Financing sources, including to provide customary comfort letters (including as to customary negative assurances) and delivering an executed certificate of the chief financial officer of the Company or an officer performing the equivalent function for the Company with respect to certain historical financial information with respect to the Company (and derived from the Company’s books and records) in the offering documents that would not customarily be covered by comfort letters (the “CFO Certificate”), (v) reasonably cooperating with advisors, consultants and accountants of Parent, Merger Sub or any sources or prospective sources of Debt Financing and/or Alternative Financing with respect to the conduct of any examination, appraisal or review of the financial condition or any of the assets or liabilities of the Company or any of its Subsidiaries, including for the purpose of establishing collateral eligibility and values, (vi) assisting in the preparation of one or more credit agreements, note purchase agreements, indentures and/or other instruments, as well as any pledge and security documents, and other definitive financing documents, collateral filings or other certificates or documents as may be requested by Parent and otherwise facilitating the pledging of collateral, (vii) (A) to the extent not prohibited by applicable Laws, facilitating the granting of guaranty and/or security or pledging of collateral and (B) executing and delivering any guaranty, pledge and security documents, commitment letters, certificates and other definitive financing documents (including one or more credit agreements, note purchase agreements, indentures and/or other instruments) (the “Definitive Debt Documents”); provided, that subject to compliance with the other provisions of this Section 7.15any guaranty, AGCO may amend the Commitment Letter collateral pledged or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated security granted by the Commitment Letter (Company or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on handunder, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation obligations of the Company or any of its Subsidiaries under under, any such document Definitive Debt Documents to which it is a party shall be effective until contingent upon the Closing other than in the case occurrence of the authorization Effective Time, (viii) taking all actions reasonably necessary to (A) permit prospective sources of Debt Financing and/or Alternative Financing to evaluate the Company’s or any of its Subsidiaries’ inventory, current assets, cash management and representation letters referred accounting systems and policies and procedures relating thereto for the purpose of establishing collateral arrangements; provided, that the information provided in connection therewith to in clause (ii) abovesuch prospective sources of Debt Financing shall be subject to the terms of the Confidentiality Agreements, and (yB) the directorsestablish bank and other accounts, officers blocked account and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, control agreements and certificates lock box arrangements in connection with the Available foregoing, (ix) furnishing Parent, Merger Sub and their respective Representatives, as well as any prospective sources of Debt Financing unless AGCO shall have confirmed that such directorsand/or Alternative Financing, officers promptly (and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and in any event at least ten (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (410) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources Closing) with all documentation and other information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior required with respect to the Closing Date about the Company or Trimble and its Subsidiaries that the Debt Financing Sources reasonably determine is required by regulatory authorities and/or Alternative Financing under applicable “know your customer” and anti-money laundering rules rules, regulations and regulationsLaws; provided, including, without limitation, that the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) information provided in connection therewith to such prospective sources of Debt Financing shall be subject to the extent terms of the Confidentiality Agreements, (x) using reasonable best efforts to assist Parent in obtaining any necessary rating agencies’ confirmation or approval of the Debt Financing and/or Alternative Financing, (xi) taking all corporate actions reasonably necessary and requested by Parent to permit the consummation of the Debt Financing and/or Alternative Financing, including the execution and delivery of any other certificates, instruments or documents and assisting Parent in obtaining consents and legal opinions contemplated by the Debt Financing and/or Alternative Financing (including compliance with any financial assistance, whitewash or similar requirements of Law of any applicable jurisdiction) or otherwise reasonably requested by AGCOParent or Merger Sub and to permit the proceeds thereof to be made available at Closing to consummate the Transactions, directing (xii) causing the auditors Company’s chief financial officer (or other director or officer with respect reasonably equivalent responsibilities) to execute and deliver a solvency certificate on the Closing Date in the form attached to the Business to provide customary comfort letters Debt Commitment Letter, (including “negative assurance” comfort and change period comfortxiii) reasonably requested by AGCO with respect to financial information approving (including the historical Business information included A) an increase in the pro forma financial information) size of the Business included Company Board to such number as is requested in any offering documents relating writing by Parent and (B) the election to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements Company Board of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements individuals who will serve as directors of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are includedSurviving Company, in each case subject of clauses (A) and (B), effective as of immediately prior to the Effective Time, (xiv) arranging for customary payoff letters, lien terminations and instruments of discharge to be delivered at or prior to Closing relating to all Indebtedness other than the 2018 Notes and the 2022 Notes to be paid off, discharged and terminated on the Closing Date, and (xv) using commercially reasonable efforts to ensure that the Debt Financing benefits from the existing lending relationships of the Group Companies to the extent requested by Parent. For the avoidance of doubt, the inclusion of any Confidential Information (as defined in the Confidentiality Agreements) in any offering memorandum or other document in connection with the Debt Financing that is provided by the Company or any of its Representatives for such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble purpose shall not constitute a breach of the Confidentiality Agreements. Neither the Company nor any of its Subsidiaries shall (Ax) be required to pay any commitment or other similar feefee prior to the Effective Time, (By) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time (other than with respect to the Authorization Letters and the CFO Certificate) or (z) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of Debt Financing and/or the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party Alternative Financing prior to the extent not entered into in contemplation of the provisions in this Section 7.15(d)Effective Time. Trimble The Company hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Debt Financing and/or Alternate Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or the Company of any of its Subsidiaries.
(e) If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, Parent shall promptly reimburse the Company for any reasonable and documented out-of-pocket costs incurred by it in connection with the Financing and the Company’s compliance with Section 6.07(d). Parent shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties (collectively, “Losses”) actually suffered or incurred by them in connection with the arrangement of the Financing and any information utilized in connection therewith (other than information provided by the Company or its Subsidiaries specifically for use in connection therewith); provided, that Parent shall not be liable to the Company, its Subsidiaries or their respective Representatives for any Losses arising from fraud, gross negligence, recklessness or willful misconduct of such persons. Each of Parent and Merger Sub acknowledges and agrees that the reputationCompany an
Appears in 3 contracts
Sources: Merger Agreement (Zhang Ray Ruiping), Merger Agreement (BPEA Teamsport LTD), Agreement and Plan of Merger (eHi Car Services LTD)
Financing. (a) Subject IDB Buyer acknowledges and agrees that Seller and its Affiliates and its and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, any financing that IDB Buyer may raise in connection with the transactions contemplated by this Agreement and that IDB Buyer shall indemnify and hold harmless Seller and its Affiliates and its and their respective Representatives from and against any and all losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with the Debt Financing (including any claims asserted by the Financing Sources) and any information utilized in connection therewith.
(b) IDB Buyer shall, and shall cause its Representatives and Affiliates to, take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to arrange and consummate the Debt Financing as soon as reasonably practical after the date of this Agreement, but in any event prior to the Closing and to obtain the proceeds of the Debt Financing on the terms and conditions, taken as a whole (including the flex provisions) described in the Debt Commitment Letter, including executing and delivering all such documents and instruments as may be reasonably required thereunder, including definitive agreements with respect to the financing on the terms and conditions of this Agreementcontained in the Debt Commitment Letter (the “Debt Financing Documents”) and:
(i) complying with and maintaining in effect the Debt Financing and the Debt Commitment Letter, AGCO shall use its reasonable best efforts to obtain negotiating and entering into definitive Debt Financing Documents with respect thereto (and maintaining in effect and complying with the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)terms thereof) on the terms and conditions set forth (as such terms may be modified or adjusted in accordance with the Commitment Letter (including terms of, and within the limits of, any “flex” provisions set forth in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter or the (including as specified in any Fee Letter provided pursuant to Section 3.11)) no less favorable, taken as a whole, to IDB Buyer than those contained in the Debt Commitment Letter, which agreements shall be in effect as promptly as practicable after the date hereof, but in no event later than the Closing Date; provided, however, that, without limiting the foregoing, in no event shall any of the Debt Financing Documents (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such nor shall any amendment, supplement, waiver or other modification or waiver thereto be reasonably expected to): (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces reduce the aggregate amount of the Committed Debt Financing provided for in the Debt Commitment Letter (including by changing the amount of fees or original issue discount contemplated by the Debt Commitment Letter other than, solely with respect to original issue discount, as expressly set forth therein unless after giving effect to the maximum amount of any such deduction, the aggregate net proceeds from the Debt Financing are and will be sufficient in amount to provide IDB Buyer with the funds necessary to consummate the transactions contemplated hereby and to satisfy its obligations under this Agreement, including to pay the Purchase Price, and the payment of all fees, costs and expenses to be paid by IDB Buyer related to the transactions contemplated by this Agreement, including such fees and expenses relating to the Debt Financing); (B) expand the conditions or other contingencies to the receipt or funding of the Debt Financing beyond those expressly set forth in the Debt Commitment Letter, amend or modify any of such conditions or other contingencies in a manner adverse to IDB Buyer or Seller (including by making any such conditions or other contingencies less likely to be satisfied) or impose any new or additional condition or other contingency to the receipt or funding of the Debt Financing; (C) contain terms (other than those terms expressly set forth in the Debt Commitment Letter that would reasonably be expected to (1) prevent, impede or delay the consummation of the transactions contemplated by this Agreement or the Debt Commitment Letter or the date on which the Debt Financing would be obtained, or (2) make the funding of Debt Financing less likely to occur; (D) adversely impact the ability of IDB Buyer to enforce its rights against the Financing Sources; or (E) impose obligations on Seller and its Affiliates;
(ii) satisfying, or causing its Representatives to satisfy, as promptly as practicable and on a timely basis all conditions to the Debt Financing contemplated by the Debt Commitment Letter and Debt Financing Documents relating thereto (including by paying any commitment, engagement or placement or other fees that become due and payable under or with respect to the Debt Commitment Letter or Debt Financing Documents);
(iii) accepting (and complying with) to the fullest extent all “market flex” provisions contemplated by the Debt Commitment Letter and the Debt Financing Documents;
(iv) obtaining all rating agency approvals necessary to obtain the Debt Financing;
(v) enforcing its rights under the Debt Commitment Letter and Debt Financing Documents in the event of a breach by the Financing Sources under the Debt Commitment Letter and Debt Financing Documents relating thereto; and
(vi) causing the Financing Sources and any other Persons providing Debt Financing to fund the Debt Financing in immediately available funds at the time the Closing is required to occur pursuant to the terms and conditions hereof.
(c) IDB Buyer shall not agree to or permit any amendment, supplement or other modification or replacement of, or grant any waiver of any condition, remedy or other provision under, the Debt Commitment Letter or the Debt Financing Documents without the prior written consent of Seller if such amendment, supplement, modification, replacement or waiver would or would reasonably be expected to (i) reduce the aggregate amount of the Debt Financing (including by increasing changing the amount of fees to be paid or original issue discount unless contemplated by the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available Debt Commitment Letter other than, solely with respect to fund such fees or original issue discount) , as expressly set forth therein unless after giving effect to the maximum amount of any such deduction, the aggregate net proceeds from the Debt Financing are and will be sufficient in amount to provide IDB Buyer with the funds necessary to consummate the transactions contemplated hereby and to satisfy its obligations under this Agreement, including to pay the Purchase Price, and to pay all fees, costs and expenses to be paid by IDB Buyer related to the transactions contemplated by this Agreement, including such fees and expenses relating to the Debt Financing), from that contemplated in by the Debt Commitment Letter or such definitive documents delivered as of the date hereof, (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (Bii) imposes impose new or additional conditions or otherwise expandsexpand, amends amend or modifies modify any of the conditions to the Committed Financing, receipt or funding of the Debt Financing in a manner adverse to Seller or IDB Buyer, (iii) make it less likely that would, in the case of this subclause Debt Financing would be funded (B), reasonably be expected including by making the conditions to (xobtaining the Debt Financing less likely to occur) or otherwise prevent or materially delay or impair the Closing ability or likelihood of IDB Buyer to timely consummate the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Datetransactions contemplated by this Agreement, taking into account the expected timing of the Marketing Period, or (yiv) adversely impact the ability of AGCO IDB Buyer to enforce its rights against the other parties to the Debt Commitment Letter or (v) otherwise contravene the limitations set forth in Section 5.16(b)(i)(A)-(E). IDB Buyer shall not agree to the withdrawal, repudiation, termination or rescission of the Debt Commitment Letter or Debt Financing Documents or any provision thereof without the prior written consent of Seller. Upon any amendment, supplement or modification of the Debt Commitment Letter in any material respect (the terms of any accordance with this Section 5.16(c), IDB Buyer shall deliver a copy thereof to Seller and references herein to “Debt Commitment Letter” shall include such amendmentdocuments as amended, modification supplemented or waiver not modified in violation of these clauses (Acompliance with this Section 5.16(c) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Debt Financing” shall include the financing contemplated by the Debt Commitment Letter (as amended, supplemented or definitive financing documents related thereto) as permitted by modified in compliance with this Section 7.15(a) to be amended, modified or replaced 5.16 and references to “Commitment Letter” shall include such document as permitted the financing contemplated by the Debt Financing Documents entered into in compliance with this Section 7.15(a) to be amended5.16, modified or replacedas applicable.
(bd) AGCO shall use its reasonable best efforts (taking into account In the anticipated timing event that all or any portion of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with Debt Financing becomes or could become unavailable on the terms and subject to conditions (including any “flex” provisions) or from the conditions thereofsources contemplated in the Debt Commitment Letter or the Debt Financing Documents for any reason or the Debt Commitment Letter or the Debt Financing Documents shall be withdrawn, provided thatrepudiated, AGCO may, terminated or rescinded for any reason (but without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with limiting the Committed Financing, obligations of IDB Buyer in the “Available Financing”penultimate sentence of Section 5.16(c) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related theretoin Section 5.16(b)(v)), (yi) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale IDB Buyer shall immediately so notify Seller and (zii) reduce and/or replace IDB Buyer shall arrange and obtain, as promptly as practicable following the aggregate amount occurrence of such event (and in any event no later than the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (xClosing Date), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, shall negotiate and enter into definitive agreements with respect to to, alternative financing from the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter same or alternative sources (including the “flex” provisions included Alternative Financing”) in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, an amount sufficient to consummate the Committed transactions contemplated by this Agreement and pay all related fees and expenses (or replace any unavailable portion of the Debt Financing), and shall obtain a new financing commitment letter (including any associated engagement letter and related fee letter) with respect to such Alternative Financing at (collectively, the “New Debt Commitment Letter”), copies of which shall be promptly provided to Seller. Notwithstanding the foregoing, no New Debt Commitment Letter may expand upon the conditions precedent or prior contingencies to the Closing Date, as applicable, including using its reasonable best efforts to cause funding or receipt of the lenders and the other persons committing to fund the Committed Debt Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Debt Commitment Letter and in effect on the Fee Letter date hereof or otherwise include terms (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in make the likelihood that such Debt Financing would be funded less likely. In the event any Alternative Financing is obtained and a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries New Debt Commitment Letter is a party to the extent not entered into in contemplation of the provisions accordance with this Section 5.16(d) (i) any reference in this Section 7.15(d). Trimble hereby consents Agreement to “Debt Financing” shall mean the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, and (ii) any reference in this Agreement to the reasonable “Debt Commitment Letter” (or defined terms that use of its such phrases) and its Subsidiaries’ trademarks to “Debt Financing Documents” shall be deemed to include the Alternative Financing and logos any New Debt Commitment Letter. Without Seller’s prior written consent, IDB Buyer shall not directly or indirectly take any action that could result in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is Debt Financing not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputationbeing available.
Appears in 2 contracts
Sources: Purchase Agreement (Cme Group Inc.), Purchase Agreement (GFI Group Inc.)
Financing. (ai) Subject Sun Treasury (or one of its Affiliates) and certain financing institutions have entered into a binding commitment letter (the “Debt Commitment Letter”) entitling Sun Treasury to borrow funds in an aggregate amount which, when combined with other funds available to ListCo, Sun or any of its applicable Affiliates to be used to part finance the terms and conditions of Cash Consideration, will be sufficient to satisfy ListCo, Merger Sub and/or Sun’s obligations under this Agreement, AGCO shall use its reasonable best efforts to obtain including the Committed Financing (taking into account payment of the Cash Consideration, and any reductions thereof pursuant to Section 7.15(b)(A)) on fees and expenses of or payable by any of them hereunder, and for any repayment or refinancing of any existing indebtedness of Willow, Sun or any of their respective Subsidiaries contemplated by, or required in connection with the terms and conditions set forth in transactions described in, this Agreement or the Debt Commitment Letter (including such amounts, the “Financing Amounts”). The debt financing committed pursuant to the Debt Commitment Letter is collectively referred to in this Agreement as the “Debt Financing”.
(ii) Sun has delivered to Willow a true, complete and correct copy of the Debt Commitment Letter and any fee letter related thereto (the “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms”, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that wouldsubject, in the case of such fee letter, to redaction solely of provisions that are customarily redacted in connection with transactions of this subclause (B), type and that would not reasonably be expected to (x) prevent or materially delay affect the Closing or the conditionality, enforceability, availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter than in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance connection with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers fees and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financingflex” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related theretoprovisions) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect theretoDebt Financing. Trimble ▇▇▇ expressly acknowledges and agrees that AGCO shall the obligations of Sun under this Agreement are not be required to consummate the Available Financing before the final day of the Marketing Periodconditioned in any manner upon Sun obtaining any financing (including term loans, bridge financing and bonds).
(ciii) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, Except as expressly set forth in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Debt Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal there are no conditions precedent to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment obligations of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by to provide the Debt Financing or any contingencies that would permit the Financing Sources at least six (6) Business Days prior to reduce the total amount of the Debt Financing, impose any additional conditions precedent to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) availability of the Business included in any offering documents relating to the Committed Debt Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation affect the timing of the availability of or breach oftermination of the Debt Financing, including any condition or a default underother contingency relating to the amount or availability of the Financing pursuant to any “flex” provision. Other than the Debt Commitment Letter and the Fee Letter, there are no side letters, understandings or other agreements, contracts or arrangements of any Contract kind (written or oral) to which Trimble Sun or any of its Subsidiaries Affiliates is a party party, or of which Sun has knowledge, relating to the extent not entered into in contemplation funding of the provisions full amount of the Debt Financing or that would reasonably be expected affect the availability or conditionality of the Debt Financing or the enforceability of the Debt Commitment Letter. Sun has paid in this Section 7.15(d). Trimble hereby consents full any and all commitment fees or other fees due and payable pursuant to the reasonable use terms of its the Debt Commitment Letter on or before the date of this Agreement, and its Subsidiaries’ trademarks and logos will pay in connection with full any such amounts due on or before the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputationMerger Effective Date.
Appears in 2 contracts
Sources: Transaction Agreement, Transaction Agreement (WestRock Co)
Financing. (a) Subject to The Buyer and the terms and conditions of this Agreement, AGCO shall Acquisition Sub will use its reasonable their best efforts to obtain the Committed proceeds of the Financing, including using their best efforts to (A) consummate the Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on contemplated by the terms and Commitment Letters at such time as all conditions set forth in Section 7.1 are satisfied (except for those requiring delivery of a certificate evidencing certain matters), (B) maintain the effectiveness of the Commitment Letter Letters (including any “flex” provisions in and the Fee Letterterm sheets and fee letters related thereto) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms their respective terms, other than such amendments or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), modifications as would not reasonably be expected to (x) prevent or materially delay impair the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 Buyer and the definitions of, and references to, Acquisition Sub’s ability to consummate the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing transactions contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consenthereby, (xC) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on Letters consistent with the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms)therein, (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any satisfy on a timely basis all conditions precedent to funding in such definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter Letters (and Fee the term sheets and fee letters related thereto); provided that, notwithstanding the foregoing, the Buyer may terminate, or allow the termination of, the Debt Commitment Letter, if prior thereto or substantially concurrently therewith the Buyer enters into a replacement commitment letter that contains no conditions precedent to funding thereunder beyond (or materially and adversely modified from) those in the Debt Commitment Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative provides for financing (“Alternative Financing”) from alternative sources in an amount at least equal to that, when taken together with the unavailable portion thereofamount of equity provided under the Equity Commitment Letter, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions is not materially less favorable to AGCO (or its Subsidiaries), as determined than that provided for in the reasonable judgment Financing as of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence date of such eventthis Agreement. For the avoidance of doubt, in no event occurrence of the Financing and/or the Buyer’s receipt of the proceeds thereof shall not be a condition precedent to the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any obligations of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter Buyer and the Fee Letter (assuming Acquisition Sub to effect the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative FinancingMerger.
(db) Prior The Company will use commercially reasonable efforts to assist and cooperate with the ClosingBuyer and the Acquisition Sub in connection with their efforts to obtain the proceeds of the Financing, Trimble shall use its including but not limited to using commercially reasonable best efforts to provide information relating to AGCOthe Company reasonably requested by the financial institution or institutions providing the Financing, using commercially reasonable efforts to make representatives of and advisors to the Company reasonably available in connection with syndication efforts regarding the Financing, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective using commercially reasonable best efforts to provideexecute and deliver, and shall use its reasonable best efforts to cause the Company’s Subsidiaries and its and their respective Subsidiaries’ Representativesofficers, to provide to AGCOexecute and deliver, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders customary certificates and other customary syndication activities documents and reasonably cooperating with instruments relating to guarantees, the marketing efforts pledge of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information collateral and other financial and other pertinent information regarding matters ancillary to the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance Debt Financing as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required Buyer in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documentsDebt Financing; provided, however, that (x) no obligation of the Company or any of its the Company’s Subsidiaries under any such certificate, document shall or instrument will be effective until the Closing other than in the case of the authorization Effective Time and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers none of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) will be required to pay any commitment or other similar fee, (B) have any liability fee or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Debt Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (prior to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputationEffective Time.
Appears in 2 contracts
Sources: Merger Agreement (Witness Systems Inc), Merger Agreement (Verint Systems Inc)
Financing. (a) Subject Newco and Merger Sub shall take (or cause to be taken) all actions, and do (or cause to be done) all things, necessary, proper or advisable to obtain the financing contemplated by the Commitment Letter, subject to the terms and conditions of this AgreementAgreement and the Commitment Letter, AGCO shall use its reasonable best efforts including (i) maintaining in effect the Commitment Letter, (ii) satisfying on a timely basis all conditions applicable to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms Newco and conditions Merger Sub set forth in the Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable within their control (other than, for the avoidance of doubt, Newco or Merger Sub’s conditions to AGCO Closing in Article VII hereof), (iii) so long as such other terms all conditions to Closing set forth in Sections 7.1 and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter 7.2 are satisfied (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including waived by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)Newco), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include consummating the financing contemplated by the Commitment Letter at the Effective Time (and in any event prior to the Termination Date), and (iv) fully enforcing the Investor’s obligations (and the rights of Newco and Merger Sub) under the Commitment Letter, including (at the request of the Company) by filing one or more lawsuits (or definitive financing documents related theretoassigning such right to the Company) as permitted by this Section 7.15(aagainst the Investor to fully enforce the Investor’s obligations (and the rights of Newco and Merger Sub) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedthereunder.
(b) AGCO Neither Newco nor Merger Sub shall use its reasonable best efforts amend, alter, or waive, or agree to amend, alter or waive (taking into account the anticipated timing in any case whether by action or inaction), any term of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter without the prior written consent of the Company. Newco shall promptly (and in accordance with any event within one Business Day) notify the terms and Company of (i) the expiration or termination (or attempted or purported termination, whether or not valid) of the Commitment Letter, or (ii) any refusal by the Investor to provide, any stated intent by the Investor to refuse to provide, or any expression of concern or reservation by the Investor regarding the enforceability of the Commitment Letter subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt terms thereof or its ability to provide the full financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior to the Closing, Trimble the Company shall use its reasonable best efforts to provide to AGCOassist Newco in the arrangement of any third party debt financing requested by Newco for the purpose of financing the merger, fees and expenses incurred in connection therewith, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries the other transactions contemplated hereby (the “Debt Financing”) (it being understood that the receipt of such Debt Financing is not a condition to use their respective reasonable best efforts to provideClosing), and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
including: (i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) participating in a reasonable number of meetings, road shows, presentations, conference calls, presentations and due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
; (ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in assisting with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing Newco’s Debt Financing; and (or iii) executing and delivering any replacement thereof permitted hereunder), including the delivery of customary authorization definitive financing documents and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO certificates as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCONewco, (A) assisting in provided that such documents will not take effect until the preparation of, and executing and delivering, customary certificates or documentsEffective Time; provided, however, that (x) no obligation of nothing herein shall require such cooperation to the extent it would require the Company to agree to pay any fees, reimburse any expenses or give any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days indemnities prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in Effective Time for which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that it is not intended to nor reasonably likely to harm reimbursed or disparage Trimble or any of its Subsidiaries or the reputationindemnified.
Appears in 2 contracts
Sources: Merger Agreement (Sumtotal Systems Inc), Merger Agreement (Vista Equity Partners Fund III LP)
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO shall use its reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth in the Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO Parent shall not agree to or permit any amendment amendment, supplement or other modification to be made toof, or any waiver termination of, or waive any of any provision its rights under, the Commitment Letter Financing Letters, in each case, without the Company’s prior written consent (which consent shall not be unreasonably withheld or the Fee Letter (or following entry into definitive documents relating to the Committed Financingdelayed), such definitive documents) if such amendment, supplement, modification or waiver would, or would reasonably be expected to, (Ai) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces reduce the aggregate amount of the Committed Financing (Debt Financing, including by increasing changing the amount of fees to be paid or original issue discount unless payable pursuant to the Committed Financing Letters, below the Required Amount (after taking into account cash on hand of Parent and its Subsidiaries that is increased by a corresponding amount or reasonably expected to be available at the Committed Financing is otherwise made Closing to pay the Required Amount and other committed funds available to fund such fees Parent or original issue discount) from that contemplated any of its Subsidiaries with conditions to funding no more onerous than those conditions to funding contained in the Debt Commitment Letter or whereupon such definitive documents (other than committed funding source shall be deemed to also be “Debt Financing” and the documentation in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)respect thereof shall be deemed to be a “Financing Letter” and a “Debt Commitment Letter”), or (Bii) imposes impose new or additional conditions to the Debt Financing, or otherwise expandsexpand, amends amend or modifies modify any of the conditions to the Committed Financing, Debt Financing in a manner that would, would be more onerous than those conditions to funding contained in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing Debt Commitment Letter on the Closing Date taking into account the expected timing of the Closing Datedate hereof, taking into account the expected timing of the Marketing Period, or (yiii) adversely impact affect the ability of AGCO Parent or Merger Sub, as applicable, to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Debt Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control andor (iv) prevent or delay the consummation of the Debt Financing or the consummation of the Transactions. Upon any such amendment, subject to satisfaction supplement or other modification of all conditions to fundingthe Financing Letters in accordance with this Section 5.15(a), to consummate the Committed terms “Financing at or prior to the Closing DateLetters”, “Debt Commitment Letter” and/or “Fee Letters”, as applicable, including using its reasonable best efforts to cause shall mean the lenders and Financing Letters, the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Debt Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate and/or the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereofLetters, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries)be, as determined in the reasonable judgment of AGCOso amended, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO supplemented or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financingmodified.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputation
Appears in 2 contracts
Sources: Merger Agreement (Regal Rexnord Corp), Merger Agreement (Altra Industrial Motion Corp.)
Financing. (a) Subject Notwithstanding anything contained in this Agreement to the terms contrary, Soap acknowledges and conditions of this Agreement, AGCO agrees that Soap’s obligations hereunder are not conditioned in any matter upon Soap obtaining any financing.
(b) Soap shall use its reasonable best efforts to obtain (i) arrange the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth described in the Debt Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consentLetters, (xii) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter thereto on the terms and conditions contained in the Debt Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms)Letters, (Ciii) satisfy on a timely basis all conditions to funding in the Debt Commitment Letter Letters and such definitive agreements with respect thereto that are within its control andthereto, subject to satisfaction of all conditions to funding, to (iv) consummate the Committed Financing at or prior to no later than the Closing Date, as applicableClosing, including using its reasonable best efforts (including through litigation in good faith) to cause the lenders Lenders and the other persons committing to fund the Committed Financing on to fund the Closing Date Financing no later than the Closing. Soap shall have the right from time to time to amend, replace, supplement or otherwise modify, or waive any of its rights under, the Debt Commitment Letters or the definitive agreements with respect thereto, and/or substitute other debt or equity financing for all or any portion of the Financing from the same and/or alternative financing sources; provided, that any such amendment, replacement, supplement or other modification to or waiver of any provision of the Financing or such definitive agreements that amends the Financing and/or substitution of all or any portion of the Financing shall not (A) reduce the “Committed aggregate amount of the Financing Sources”to an amount committed below the amount that is required to consummate the Merger and repay or refinance the Indebtedness set forth in Section 3.17(a)(ii) of the Dish Disclosure Letter; (B) impose new or additional conditions or otherwise expand upon the conditions precedent to the Financing as set forth in the Debt Commitment Letters; (C) prevent, impede or delay the funding of the Financing or the consummation of the Merger and the other transactions contemplated hereunder or (D) materially and adversely impact the ability of Soap to enforce its rights under against other parties to the Debt Commitment Letter and any Letters or the definitive agreements with respect thereto. Trimble acknowledges and agrees Soap shall promptly deliver to Dish copies of any such amendment, replacement, supplement, modification or waiver. In the event that AGCO shall not be required to consummate the Available Financing before the final day any portion of the Marketing Period.
Financing becomes unavailable in the manner or from the sources contemplated in the Debt Commitment Letters for any reason, (cA) AGCO Soap shall promptly notify Dish and (B) Soap shall use its reasonable best efforts to arrange to obtain any such portion from alternative sources, on terms that are not materially adverse to Soap, 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 second sentence of this Section 5.17(b) being referred to as the “Financing Agreements”). Soap shall use the bridge facility (if any) contemplated by the Debt Commitment Letters as necessary to cause the Closing to occur by the third (3rd) Business Day following the day on which the conditions set forth in Article VI hereof have been satisfied or duly waived (other than those conditions that by their nature are to be satisfied at the Closing but subject to the satisfaction or waiver of those conditions). Soap shall, and shall use its reasonable best efforts to cause its Representatives to, comply with the terms, and satisfy on a timely basis the conditions, of the Debt Commitment Letters, any alternative financing commitments, the Financing Agreements and any related fee and engagement letters. Any material breach of the Debt Commitment Letters, the Financing Agreements, any alternative financing commitment and any related fee and engagement letter by Soap shall be deemed a willful and material breach by Soap of this Section 5.17. Soap shall (x) furnish to Dish complete, correct and executed copies of the Financing Agreements promptly upon their execution (provided that the amount of fees and certain other economic terms may be redacted), (y) give Trimble Dish prompt notice (x1) of any material breach or default by any party to any of the Debt Commitment Letter Letters, any alternative financing commitment or definitive agreements relating to the Committed Financing Agreements of which AGCO has Knowledge if such breach Soap becomes aware or default would result in a material delay of, or in any way limit, the availability of the Committed Financingtermination thereof, (y2) of the receipt of any written notice or other written communication, in each case from any Committed Financing Source source, with respect to (A) any actual or potential material breach, material default, termination or repudiation by any party to the Debt Commitment Letter Letters, any alternative financing commitment or definitive agreements relating to the Committed Financing Agreements of any provisions of the Debt Commitment Letter Letters, any alternative financing commitment or definitive agreements relating the Financing Agreements or (B) material dispute or disagreement between or among any parties to the Committed Debt Commitment Letters, any alternative financing commitment or the Financing if such breach, default, termination Agreements with respect to the obligation to fund the Financing or repudiation would result in a material delay of, or in any way limit, the availability amount of the Committed Financing and to be funded at Closing or (z3) if at any time for any reason AGCO Soap believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources sources contemplated by the Debt Commitment Letter Letters, any alternative financing commitment or definitive agreements relating the Financing Agreements and (z) otherwise keep Dish reasonably informed of the status of Soap’s efforts to arrange the Committed FinancingFinancing (or any replacement thereof). As soon as reasonably practicable after practicable, but in any event within two Business Days of the date Trimble Dish delivers to AGCO Soap a written request, AGCO Soap shall provide any information reasonably requested by Trimble Dish relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(dc) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCODish shall, and shall cause ▇▇▇▇▇▇▇’▇ the Dish Subsidiaries to use their respective reasonable best efforts to provideto, and shall use its commercially reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCORepresentatives to, at AGCOSoap’s sole expense, all cooperation reasonably requested by AGCO cooperate to assist Soap in causing the conditions in the Financing Agreements to be satisfied and that is as otherwise may be necessary and customarily required for financings of the type contemplated by the Commitment Letter or desirable in connection with the Available Financing. Without limitation arrangement and consummation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO Soap (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Dish and the Dish Subsidiaries). Such cooperation shall include, at the reasonable request of Soap (i) participating in a reasonable number of meetings (including customary one-on-one meetings with the parties acting as lead arrangers for the Financing or any alternative financing and senior management and Representatives, with appropriate seniority and expertise, of Dish), presentations, road shows, due diligence sessions (including accounting due diligence sessions), drafting sessions and sessions with rating agencies; (ii) assisting with the preparation of customary materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar other documents or memoranda required in connection with the Available Financing (including information to be used in the preparation of an information package regarding the business, operations, financial projections and prospects of Soap and Dish customary for such financing or reasonably necessary for the completion of the Financing by Soap’s financing sources); (iii) furnishing Soap and its Lenders as promptly as reasonably practicable with financial information, regarding Dish and the Dish Subsidiaries as may be reasonably requested by Soap in writing in connection with the Financing, including (A) all financial statements and financial and other data of the type required by Regulation S-X and Regulation S-K under the Securities Act for registered offerings of debt securities, and of the type and form customarily included in offering documents used in private placements under Rule 144A of the Securities Act (including pro forma financial information and other documents required to satisfy any customary negative assurance opinion, to consummate the Financing at the time or times the Financing is to be consummated), (B) all of the information and data related to Dish and its Subsidiaries necessary to satisfy the requirements of Sections 2, 3, 5a and 5b of Exhibit D of the Debt Commitment Letters and (C) other documents required to consummate the Financing at the time or times the Financing is to be consummated, and appropriate comparable information if a portion of the Financing is consummated prior to the Closing Date; provided that Dish shall only be required to furnish pro forma financial statements or other pro forma financial information if Soap has provided Dish information relating to the proposed debt and equity capitalization at least 15 days prior to the date pro forma financial statements are required to be delivered (information and data required to be delivered pursuant to clauses (A) and (B) of this clause (iii) being referred to as the “Required Financial Information”); (iv) reasonably cooperating with the marketing efforts of Soap and its financing sources for any portion of the Financing (including consenting to the use of Dish’s and the Dish Subsidiaries’ logos; provided, that such logos are used solely in the manner that is not intended to or reasonably likely to harm or disparage Dish or the Dish Subsidiaries or the reputation or goodwill of Dish or any replacement thereof permitted hereunderof the Dish Subsidiaries); (v) reasonably facilitating the pledging of collateral to be pledged under the Financing at or after the Closing and execution and delivery of definitive financing documents and customary deliverables; provided, that such pledges or documents will not take effect until the Effective Time; (vi) using commercially reasonable efforts to obtain accountants’ comfort letters, accountants’ consent letters and assisting Soap and Merger Sub with obtaining legal opinions as reasonably requested by Soap; (vii) executing and delivering (or using commercially reasonable efforts to obtain from its advisors), including and causing the delivery Dish Subsidiaries to execute and deliver (or use commercially reasonable efforts to obtain from its advisors), customary certificates or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Soap as necessary and customary in connection with the Financing; provided, that such documents will not take effect until the Effective Time; (viii) assisting in (A) the preparation of and entering into one or more credit agreements, currency or interest hedging agreements, or other agreements or (B) the amendment of any of Dish’s of the Dish Subsidiaries’ existing credit agreements, currency or interest hedging agreements, or other agreements, in each case, on terms reasonably satisfactory to Soap and that are reasonably requested by Soap in connection with the Financing; provided, that no obligation of Dish or any of the Dish Subsidiaries under any such agreements or amendments shall be effective until the Effective Time; (ix) using its commercially reasonable efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance; (x) using its commercially reasonable efforts to permit any cash and marketable securities of Dish and the Dish Subsidiaries to be made available to Soap at the Closing; (xi) providing customary authorization and representation letters to the extent contemplated by or customary in financing sources authorizing the Available Financing distribution of information to prospective lenders and containing a supplement representation to or alternative version such financing sources that does the public side versions of such documents, if any, do not include information that constitutes material non-public information regarding Trimble about Dish or its affiliates or securities; (xii) providing audited consolidated financial statements of Dish covering the Business and similar documents required in connection with arranging three fiscal years immediately preceding the Available Financing and updating Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any Required Information provided to AGCO as may be necessary to consummate interim monthly or quarterly period or periods of Dish ended after the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation date of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization most recent audited financial statements and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days 45 days prior to the Closing Date about (within 45 days after the Company or Trimble end of each such period); and its Subsidiaries that the Financing Sources (xiii) cooperating reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationswith Soap’s financing sources’ due diligence, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect customary and reasonable and to the Business to provide customary comfort letters extent not unreasonably interfering with the business of Dish and the Dish Subsidiaries.
(d) Soap shall promptly, upon request by Dish, reimburse Dish for all of its and the Dish Subsidiaries documented reasonable out-of-pocket costs and expenses (including “negative assurance” comfort accountants’ fees and change period comfortreasonable attorneys’ fees) reasonably requested incurred by AGCO Dish and the Dish Subsidiaries in connection with respect to financial information (including the historical Business information included cooperation of Dish and the Dish Subsidiaries contemplated by this Section 5.17. Notwithstanding anything in the pro forma financial information) of the Business included in any offering documents relating this Agreement to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are includedcontrary, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble Dish nor any of its the Dish Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability fee or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability or obligation in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (replacements thereof) prior to the extent Effective Time for which it is not reimbursed or indemnified by Soap. If the Effective Time does not occur, Dish, the Dish Subsidiaries and their respective officers, directors and Representatives shall be indemnified and held harmless by Soap for and against any provision creating such conflict was not created in contemplation of the Available Financing) and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos incurred by them in connection with the Available Financing and any information utilized in connection therewith (other than information provided by or on behalf of Dish or the Dish Subsidiaries), in each case except to the extent such liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties arise from Dish’s, the Dish Subsidiaries’ or its Representatives’ gross negligence, bad faith or willful misconduct, as determined by a court of competent jurisdiction.
(e) Soap acknowledges and agrees that Dish and the Dish Subsidiaries and their respective Affiliates and employees have no responsibility for, or obligation with respect to, any financing that Soap may raise in connection with the transactions contemplated hereby, other than, and solely to the extent of, the obligation to cooperate as provided in Section 5.17(c), Section 5.18(a), Section 5.18(b) and Section 5.18(c).
(f) Soap shall use its reasonable best efforts to cause the Marketing Period to commence promptly after satisfaction of the conditions set forth in Section 6.1(a) and Section 6.1(b). Soap and Merger Sub shall provide notice to Dish within 24 hours (i) of the commencement of the Marketing Period and (ii) if Soap or Merger Sub has determined, or if the managing underwriter or lead arranger, as applicable for the Financing; provided, howeverhas informed Soap or Merger Sub that it has determined, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm the Marketing Period has been terminated, recommenced or disparage Trimble or any of its Subsidiaries or the reputationextended.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Sealed Air Corp/De), Merger Agreement (Diversey Holdings, Inc.)
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO Merger Sub shall use its reasonable best efforts to (i) obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions described in the Financing Documents, (ii) maintain in effect the Financing Documents until the Transactions are consummated in accordance with their respective terms, (iii) satisfy, or cause to be satisfied, on a timely basis all conditions to the closing of and funding under the Financing Documents applicable to Merger Sub, including paying when due all commitment fees and other fees arising under the Financing Documents as and when they become due and payable thereunder, and (iv) consummating the Financing at or prior to the Effective Time in accordance with the terms of the Financing Documents; provided that Merger Sub may amend or modify the Financing Documents, and/or elect to replace all or any portion of the Debt Financing or increase the amount of debt financing to be obtained with alternative debt financing subject only to such conditions to funding as are substantially similar, or are not less favorable in aggregate, from the standpoint of the Company and its shareholders (other than the holders of Excluded Shares and Continuing Shares), than the terms and conditions as set forth in the Commitment Letter Financing Documents as in effect on the date hereof (including the “Alternative Financing”), in each case only so long as (A) the aggregate proceeds of the Debt Financing (as amended or modified) and/or the Alternative Financing, together with the aggregate proceeds of the Equity Financing and an amount of Available Cash that equals or exceeds the Offshore Available Cash Amount, will be sufficient for Merger Sub and the Surviving Company to pay (i) the Merger Consideration, and (ii) any “flex” provisions other amounts required to be paid in connection with the Fee Letter) or on such other consummation of the Transactions upon the terms and conditions that are acceptable contemplated hereby and (B) such amendment or modification or the Alternative Financing would not (i) prevent, materially delay or materially impede or impair the ability of Merger Sub to AGCO so long consummate the Transactions or (ii) adversely impact in any material respect the ability of Merger Sub to enforce its rights against the other parties to the Debt Commitment Letters or any definitive agreements with respect thereto. Without limiting the generality of the foregoing, Merger Sub shall not release or consent to the termination of the obligations of the financing sources under any Financing Documents or definitive agreement with respect thereto. Merger Sub shall promptly notify the Company as such soon as it engages or participates in discussions or negotiations regarding the Alternative Financing and deliver to the Company true and complete copies of all Contracts or other arrangements pursuant to which any alternative sources have committed to provide the Alternative Financing (the “Alternative Financing Documents”) (except for customary engagement and fee letters) as promptly as practicable after execution thereof. In the event any portion of the Financing becomes unavailable on the terms and conditions constitute Permitted contemplated in the Financing TermsDocuments and to the extent is not replaced by the Alternative Financing, Merger Sub shall promptly notify the Company.
(b) Notwithstanding anything to the contrary contained in this Agreement, nothing contained in Section 6.07(a) shall require, and AGCO in no event shall not permit any amendment the reasonable best efforts of Merger Sub be deemed or modification construed to be made torequire, Merger Sub to agree to terms and conditions in the aggregate that are less favorable to Merger Sub or the Surviving Company (or any of their Affiliates) than, those contemplated by the Debt Commitment Letters and/or, if applicable, the Alternative Financing Documents (in each case, whether to secure waiver of any provision under, the Commitment Letter conditions contained therein or the Fee Letter otherwise).
(or following entry into definitive documents relating c) Subject to the Committed Financingterms and conditions of this Agreement, such definitive documents) Merger Sub agrees not to amend, modify or waive any provision of the Financing Documents, if such amendment, modification or waiver reduces (Aor would reduce) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, Financing in a manner that would, in the case of this subclause (B), reasonably would be expected to (x) prevent or materially delay the Closing or the availability ability of the Committed Financing on Company or Merger Sub to consummate the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, Transactions or (y) otherwise adversely impact the ability of AGCO Merger Sub to enforce its rights against the other parties to the Commitment Letter in any material respect Financing Documents. Merger Sub shall give the Company prompt notice (the terms i) upon becoming aware of any such amendment, modification or waiver not in violation breach of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles toany provision of, or between or among, termination by any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, Financing Documents or (ii) upon the receipt of any Committed written notice from any person with respect to any threatened breach or threatened termination of the Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedDocuments.
(bd) AGCO The Company agrees to provide, and shall use cause each of its Subsidiaries and each of their respective Representatives to provide to Merger Sub, all reasonable cooperation as may be requested by Merger Sub or its Representatives in connection with the Debt Financing and/or Alternative Financing and the Transactions, including (i) participation in meetings, presentations, due diligence sessions, road shows, sessions with rating agencies and other meetings, including arranging for reasonable direct contact between senior management, representatives and advisors of the Company or its Subsidiaries with Representatives of Merger Sub and any sources or prospective sources of the Debt Financing and/or Alternative Financing, (ii) assisting in the preparation of offering memoranda, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations, other marketing documents and similar documents reasonably requested by Merger Sub or its Representatives in connection with the Debt Financing and/or Alternative Financing (including using reasonable best efforts (taking into account the anticipated timing to obtain consents of the Closing Date and the Marketing Period) to (A) maintain accountants for use of their reports in effect the Commitment Letter in accordance with the terms and subject any materials relating to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) Debt Financing and/or Alternative Financing and thereby reduce the amount delivery of the Committed Financing under the Commitment Letter (one or definitive financing documents related theretomore customary representation letters), (yiii) reduce and/or replace the amount as promptly as practicable, furnishing Merger Sub and any sources or prospective sources of the Committed Debt Financing and/or Alternative Financing with financial and other pertinent information (including without limitation, certifying in writing by an authorized representative of the net proceeds raised by AGCO and/or any Company, the allocation of the Onshore Available Cash between retained earnings of the relevant Subsidiaries of the Company and other cash) regarding the Company and its Subsidiaries through as may be reasonably requested by Merger Sub or any equity financing sources or asset sale and (z) reduce and/or replace the aggregate amount prospective sources of the Committed Debt Financing by the amount of Cash on hand and/or Alternative Financing and is reasonably available to AGCO, in the case of each of clauses (x), (y) Company and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior to the Closing Date, as applicable, including using its commercially reasonable best efforts to cause the lenders Company’s independent accountants to provide assistance and the other persons committing cooperation in connection therewith to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter Merger Sub and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day sources or prospective sources of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Debt Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed and/or Alternative Financing, (yiv) reasonably cooperating with advisors, consultants and accountants of Merger Sub or any sources or prospective sources of the receipt of any written notice or other communication, in each case from any Committed Debt Financing Source and/or Alternative Financing with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing conduct of any provisions examination, appraisal or review of the Commitment Letter financial condition or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all assets or any portion liabilities of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO Company or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including for the delivery purpose of customary authorization establishing collateral eligibility and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCOvalues, (Av) assisting in the preparation ofof one or more credit agreements, note purchase agreements, indentures and/or other instruments, as well as any pledge and security documents, and other definitive financing documents, collateral filings or other certificates or documents as may be requested by Merger Sub and otherwise facilitating the pledging of collateral, (vi) (A) to the extent customary and not prohibited by applicable Laws, facilitating the granting of guaranty, security or pledging of collateral and (B) executing and deliveringdelivering any guaranty, customary pledge and security documents, commitment letters, certificates and other definitive financing documents (the “Definitive Debt Documents”), provided that any collateral pledged or documents; providedsecurity granted by the Company or any of its Subsidiaries under, however, that (x) no obligation and any obligations of the Company or any of its Subsidiaries under under, any such document Definitive Debt Documents to which it is a party shall be effective until contingent upon the Closing other than in the case occurrence of the authorization Effective Time, (vii) taking all actions reasonably necessary to (A) permit prospective sources of the Debt Financing and/or Alternative Financing to evaluate the Company’s or any of its Subsidiaries’ current assets, cash management and representation letters referred accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements, provided that the information provided in connection therewith to in clause (ii) abovesuch prospective sources shall be subject to the terms of the Confidentiality Agreements, and (yB) the directorsestablish bank and other accounts, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, blocked account agreements and certificates lock box arrangements in connection with the foregoing, including over Available Cash, (viii) furnishing Merger Sub and its Representatives, as well as any prospective sources of the Debt Financing unless AGCO and/or Alternative Financing, promptly (and, provided that Merger Sub shall have confirmed that requested, in writing, such directors, officers and managers are to remain as directors, officers and managers of information from the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and at least fifteen (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (415) Business Days prior to the Closing DateClosing, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested then in writing by the Financing Sources any event at least six ten (610) Business Days prior to the Closing Date about Closing) with all documentation and other information required with respect to the Company or Trimble and its Subsidiaries that the Debt Financing Sources reasonably determine is required by regulatory authorities and/or Alternative Financing under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, provided that the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) information provided to such prospective sources shall be subject to the extent terms of the Confidentiality Agreements, (ix) using reasonable best efforts to obtain any necessary rating agencies’ confirmation or approval of the Debt Financing and/or Alternative Financing, and (x) taking all corporate actions reasonably necessary to permit the consummation of the Debt Financing and/or Alternative Financing, including the execution and delivery of any other certificates, instruments or documents contemplated by the Debt Financing and/or Alternative Financing and reasonably requested by AGCO, directing Merger Sub and to permit the auditors with respect proceeds thereof to be made available at Closing to consummate the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including Transactions. Neither the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble Company nor any of its Subsidiaries shall (A) be required to (x) pay any commitment or other similar fee, fee prior to the Effective Time or (By) have commit to taking any liability or obligation under any loan agreement and related documents, unless and until action that is not contingent upon the Closing occurs (except including entry into any agreement) or would be effective prior to the authorization and representation letters referred Effective Time or that would otherwise subject it to in clause (ii) above), (C) incur any other actual or potential liability in connection with the Available Debt Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (and/or Alternative Financing prior to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d)Effective Time. Trimble The Company hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Debt Financing and/or Alternative Financing; provided, however, provided that Merger Sub shall ensure that such trademarks and logos are used solely in a manner that is not intended to nor intended, or that is not reasonably likely likely, to harm or disparage Trimble the Company or the Company’s reputation or goodwill.
(e) Merger Sub shall, promptly upon request by the Company, reimburse the Company following the valid termination of this Agreement for all reasonable and documented out-of-pocket costs incurred by the Company or its Subsidiaries in connection with any cooperation provided pursuant to this Section 6.07 and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives for and against any and all liabilities, expenses or losses suffered or incurred by them in connection with the arrangement of the Financing and any information utilized in connection therewith, except in the event such liabilities, expenses or losses arose out of or result from the fraud, gross negligence, recklessness or willful misconduct of the Company, its Subsidiaries or any of their respective Representatives. Merger Sub acknowledges and agrees that the Company and its Subsidiaries or and their respective Representatives shall not, prior to the reputationEffective Time, incur any liability to any person under any financing that Merger Sub may raise in connection with the Transactions.
Appears in 2 contracts
Sources: Merger Agreement (Yan Rick), Merger Agreement (51job, Inc.)
Financing. (a) Subject IP, Spinco and UWWH shall use, and shall cause their respective Subsidiaries and Representatives and advisors to the terms and conditions of this Agreementuse, AGCO shall use its their reasonable best efforts to obtain arrange and to consummate the Committed Spinco Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) as soon as reasonably practicable after the date of this Agreement on the terms and conditions no less favorable in the aggregate than the terms set forth in the Spinco Commitment Letter (including any market “flex” provisions provisions) as in effect on the Fee Letter) date hereof, as it may be amended or on such other replaced in accordance with the terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Termsof this Section 8.19, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documentsincluding using their respective reasonable best efforts, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (Ai) maintain in effect the Spinco Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consentLetter, (xii) enter into other debt financing arrangements (any such debt financing, satisfy on a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter timely basis (or definitive financing documents related thereto)obtain the waiver of) all conditions and covenants applicable to IP, (y) reduce and/or replace Spinco or UWWH, as the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCOcase may be, in the case of each of clauses (x)Spinco Commitment Letter and such definitive documents to be entered into pursuant to the Spinco Commitment Letter, (yiii) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on thereto consistent with the terms and conditions contained in the Spinco Commitment Letter provided on the date of this Agreement (including the any market “flex” provisions included provisions, if any) or on other terms no less favorable in the Fee Letter) aggregate to IP, Spinco or UWWH (or on such other terms that are acceptable in each case, upon written consent of IP and UWWH to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and enter into such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate in the Committed Financing at or prior to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on event the terms and conditions, in thereof are inconsistent with the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Spinco Commitment Letter delivered on the date hereof , as it may be amended or replaced in accordance with this Section 8.19), (iv) in the case of Spinco, comply with its obligations and, in the case of IP and UWWH, cooperate with Spinco to enable Spinco to comply with its obligations under the Fee Spinco Commitment Letter (assuming including, without limitation, in the application case of IP, taking such actions as necessary to cause the payment to IP of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood Special Payment and agreed that any Alternative Financing shall be permitted to be in the form case of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreementsUWWH, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings repayment in full of the type contemplated by the Commitment Letter Unisource Credit Facility in connection with the Available Financing. Without limitation consummation of the generality Merger) and (v) cooperate in all aspects necessary or reasonably requested by IP or UWWH in connection with the arrangement and consummation of the foregoingSpinco Financing as required by the terms of the Spinco Commitment Letter, such reasonable best efforts shall include:
including, without limitation, (iA) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference callsand meetings with, due diligence sessionsand presentations to, sessions with rating agencies and potential prospective lenders and other customary syndication activities and reasonably cooperating rating agencies; (B) assisting with the marketing and due diligence efforts of AGCO and with respect to the Financing Sources, in each case, in connection with the Available Spinco Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in including the preparation of materials for rating agency presentations, offering bank information memoranda, lender presentations and other customary marketing materials, including execution and delivery of customary authorization letters (by each of the Persons required by the Lenders to deliver such letters), in each case consistent with the terms required by the Spinco Commitment Letter in connection therewith; (C) furnishing financial and other information regarding UWWH, Spinco and their respective Subsidiaries, as required by the Spinco Commitment Letter (all such information in this clause (C), the “Required Information”); (D) using their reasonable best efforts to obtaining legal opinions, appraisals, surveys, title insurance and other documentation and items relating to the Spinco Financing as required by the Spinco Commitment Letter; (E) executing and delivering any pledge and security documents, private placement memorandaother definitive financing documents, prospectusesor other certificates, bank information memoranda mortgages, documents and similar documents instruments relating to guarantees, or documents, in each case as and when required by the Spinco Commitment Letter (including a certificate of the Chief Financial Officer (or officer of equivalent duties) of Spinco or any Subsidiary with respect to solvency matters (which certificate shall be in the form attached to the Spinco Commitment Letter), all back-up and supporting information, as may be reasonably required by the person signing such certificate to support the conclusions set forth therein) and otherwise facilitating the pledging of collateral and providing of guarantees contemplated by the Spinco Commitment Letter (including cooperation in connection with the Available pay-off of existing Indebtedness and the release of related liens); (F) using their reasonable best efforts in taking all reasonable actions necessary to (I) permit the prospective persons involved in the Spinco Financing (or any replacement thereof permitted hereunder)to evaluate UWWH, Spinco and their respective Subsidiaries, including Spinco’s and UWWH’s current assets, cash management and accounting systems, policies and procedures relating thereto for the delivery purposes of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, establishing collateral arrangements and (yII) the directorsestablish bank and other accounts, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, blocked account agreements and certificates lock box arrangements in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain foregoing as directors, officers and managers required by the terms of the Company and its Subsidiaries on and after the Closing and Spinco Commitment Letter, provided that no such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, arrangement or only agreement shall become effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date; (G) using reasonable best efforts to obtain waivers, consents, estoppels and approvals from other parties to material leases, Encumbrances and Contracts to which any Subsidiary of Spinco or UWWH is a party, in each case to the extent required by the terms of the Spinco Commitment Letter; (H) furnishing to AGCO and the Financing Sources all documentation and other information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities concerning such Person under applicable “know your customer” and anti-money laundering rules and regulations, including, including without limitation, limitation the PATRIOT Patriot Act, includingand (I) using reasonable best efforts to cooperate with the lenders in their efforts to benefit from the existing lending relationships of IP, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership RegulationSpinco or UWWH; provided, a Beneficial Ownership Certification; and
(vi) however, that nothing herein shall require such cooperation to the extent reasonably requested by AGCOit would interfere unreasonably with the business or operations of IP, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in Spinco or UWWH or any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standardsrespective Subsidiaries; provided, further, that neither Trimble nor for the avoidance of doubt, nothing set forth in this Section 8.19 shall require IP, Spinco or UWWH or any of its their respective Subsidiaries shall (A) be required to pay enter into any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred documentation prior to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date (other than an authorization letter pursuant to clause (iv)(B) above) or (D) be required deliver any financial statements except as expressly contemplated by the Spinco Commitment Letter provided on the date of this Agreement. IP, Spinco and UWWH will update any such Required Information in order to take ensure that such Required Information does not contain any action that will (x) conflict with untrue statement of material fact or violate ▇▇▇▇▇▇▇’▇ or omit to state any of its Subsidiaries’ Organizational Documents (material fact necessary in order to make the statements contained therein not materially misleading, as and to the extent any provision creating such conflict was not created in contemplation required by the terms of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any Spinco Commitment Letter. Each of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble Spinco and UWWH hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, Spinco Financing provided that such trademarks and logos are used solely in a manner that is not intended to nor or reasonably likely to harm or disparage Trimble it or its reputation or goodwill or any of its intellectual property rights.
(b) In the event that any portion of the Spinco Financing becomes unavailable on the terms and conditions contemplated in the Spinco Commitment Letter provided on the date of this Agreement (including any market “flex” provisions), IP and Spinco (unless the unavailability of the Spinco Financing is a result of the failure of UWWH to comply with Section 8.19(a)) and UWWH (unless the unavailability of the Spinco Financing is a result of the failure of IP or Spinco to comply with Section 8.19(a)) shall use their reasonable best efforts to obtain alternative financing from the same or alternative sources in an amount sufficient to consummate the transactions contemplated by this Agreement and the other Transaction Agreements as promptly as practicable following the occurrence of such event. The terms of any such alternative financing shall be no less favorable in the aggregate to Spinco and its Subsidiaries and UWWH than the terms of the Spinco Commitment Letter in effect on the date hereof unless otherwise agreed by IP and UWWH (it being understood and agreed that whether such alternative financing is more or less restrictive with respect to payments under the reputationTax Receivables Agreement than the terms of the Spinco Commitment Letter in effect on the date hereof shall not be taken into account for purposes of determining whether the terms of such alternative financing are less favorable to Spinco, its Subsidiaries and UWWH). IP, Spinco and UWWH shall use their respective reasonable best efforts to cause the terms of any such alternative financing to be no more restrictive with respect to payments under the Tax Receivable Agreement than the terms of the Spinco Commitment Letter in effect on the date hereof.
(c) Spinco shall not, without the prior written consent of IP and UWWH, (i) terminate any Spinco Commitment Letter, unless such Spinco Commitment Letter is replaced by a substitute commitment letter that would be permitted under the following clause (c)(ii) if it were an amendment to the Spinco Commitment Letter, (ii) consent to any amendment or modification to the Spinco Commitment Letter that would change or add to the conditions precedent, delay or prevent the funding under the Spinco Financing, be more restrictive with respect to payments under the Tax Receivable Agreement or otherwise adversely affect in any material respect those terms set forth in the Spinco Commitment Letter provided on the date of this Agreement or result in terms less favorable in the aggregate to IP, Spinco or UWWH or (iii) enter into any definitive documentation with respect to the Spinco Financing in the event the terms thereof are inconsistent with the terms contained in the Spinco Commitment Letter delivered on the date hereof, as it may be amended or replaced in accordance with Section 8.19. In the event that Spinco enters into a substitute commitment letter pursuant to this Section 8.19(b), references in this Agreement to the Spinco Commitment Letter shall be deemed to refer to such substitute commitment letter and references in this Agreement to the Spinco Financing shall be deemed to refer to the debt financing contemplated by such substitute commitment letter.
(d) Each Party shall use its reasonable best efforts to cause its outside auditors to participate in the preparation of any pro forma financial statements necessary or desirable for use in connection with obtaining any Indebtedness incurred under the Spinco Financing.
(e) Each of IP, Spinco and UWWH shall use, and shall cause their respective Subsidiaries and Representatives and advisors to use, their reasonable best efforts to cooperate with each other, and assist in marketing the Surviving Corporation and the Spinco Common Stock to potential investors, IP stockholders and the general investment and capital market communities, including using reasonable best efforts to (i) participate in investor meetings and (ii) take the types of action and provide the types of information described in Section 8.19(a) as are appropriate in connection with such marketing and/or as may be reasonably requested by UWWH, IP or Spinco.
Appears in 2 contracts
Sources: Merger Agreement (Xpedx Holding Co), Merger Agreement (Xpedx Holding Co)
Financing. (a) Subject Parent has delivered to the Company a true and complete copy of the executed debt commitment letters (including all exhibits, schedules, annexes and amendments thereto and the related fee letters (redacted for provisions related to fees, pricing, “flex” terms (other than any “flex” terms expressly permitted thereby to be disclosed to the Company) and conditions any other economic terms)), dated as of the date of this Agreement, AGCO shall use its reasonable best efforts by and among certain of the Financing Sources and Parent providing for debt financing as described by such commitment letters (such commitment letters, including all such exhibits, schedules, annexes and amendments thereto and the related fee letters (redacted for provisions related to obtain the Committed Financing fees, pricing, “flex” terms (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth in the Commitment Letter (including other than any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification term expressly permitted thereby to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating disclosed to the Committed Financing, such definitive documentsCompany) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (and any other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)economic terms), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B)collectively, the “Permitted Financing TermsCommitment Letters”); provided, that subject pursuant to compliance with the other provisions of this Section 7.15which, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with upon the terms and subject to the conditions thereofset forth or referred to therein, provided thatcertain of the Financing Sources have agreed to lend the amounts set forth therein (the “Financing”), AGCO mayfor the purpose of, without ▇▇▇▇▇▇▇’▇ consentinter alia, funding the Merger Consideration and the fees and expenses related thereto.
(xb) enter into other debt financing arrangements (any such debt financingAs of the date of this Agreement, each Commitment Letter is in full force and effect and is a “Permanent Financing” valid and binding obligation of Parent and Merger Sub and, together with the Committed Financingto Parent’s knowledge, the “Available Financing”) and thereby reduce other parties thereto, enforceable in accordance with its terms (subject to the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related theretoRemedies Exceptions), (y) reduce and/or replace and is not subject to any conditions precedent related to the amount funding of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, that are not set forth or otherwise contemplated in the case copies of each of clauses (x), (y) and (z), such Commitment Letter provided to the extent Company (it being understood that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reductionfee letters may be redacted by Parent by removing fees, taken together with Cash on handpricing, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) terms (or on such other terms that are acceptable than any “flex” term expressly permitted to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior be disclosed to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”Company) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Periodother economic terms therein.
(c) AGCO shall give Trimble prompt notice (x) None of the Commitment Letters has been amended or modified on or prior to the date of this Agreement and the respective commitments contained therein have not been terminated, reduced, withdrawn or rescinded on or prior to the date of this Agreement, and to Parent’s knowledge, none of any breach such actions is contemplated as of the date hereof.
(d) As of the date of this Agreement, none of the Financing Sources has notified Parent or default by Merger Sub of its intention to terminate any party to the Commitment Letter or definitive not to provide the Financing.
(e) As of the date of this Agreement, none of Parent, Merger Sub or, to Parent’s knowledge, any other party to any Commitment Letter is in material default or material breach under the terms and conditions of such Commitment Letter and no event has occurred which, with or without notice, lapse of time or both, would constitute a material default or material breach by Parent, Merger Sub or, to Parent’s knowledge, any other party to such Commitment Letter under the terms and conditions of the Commitment Letter. As of the date of this Agreement, Parent has no reason to believe that it or any other party thereto will be unable to satisfy any of the conditions to the Financing to be satisfied pursuant to each Commitment Letter on the Closing Date, provided that Parent is not making any representation or warranty regarding the effect of the inaccuracy of the representations or warranties set forth in Article III or non-compliance by the Company and its affiliates with their respective obligations hereunder on any such condition to the Financing.
(f) As of the date of this Agreement, there are no side letters, understandings or other agreements relating to the Committed Financing to which Parent or any of which AGCO has Knowledge if such breach or default would result in its affiliates is a material delay of, or in any way limit, party that imposes conditions to the availability funding of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions those set forth in the Commitment Letter Letters.
(g) Parent or an affiliate thereof on its behalf has fully paid any and all commitment or other fees required by the Fee Letter Commitment Letters to be paid on or prior to the date of this Agreement.
(including h) Parent and Merger Sub will have at and, where applicable, after the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates Closing funds sufficient to (i) agree topay the Merger Consideration, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek pay any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted all fees and expenses required to be in paid by Parent, Merger Sub and the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter Surviving Company in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO Merger and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation pay for any refinancing of any outstanding indebtedness of the Company contemplated by this Agreement or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization Commitment Letters and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets satisfy all of the Business incurred in connection with any Indebtedness other payment obligations of Trimble and its Subsidiaries and required to be released pursuant to the terms hereofParent, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO Merger Sub and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Surviving Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputationcontemplated hereunder.
Appears in 2 contracts
Sources: Merger Agreement (Plains Exploration & Production Co), Merger Agreement (Freeport McMoran Copper & Gold Inc)
Financing. (a) Subject to Upon the terms and subject to the conditions of this Agreement, AGCO Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary to arrange and obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth described in the Commitment Letter pursuant to the terms thereof (including including, as necessary, any “market flex” provisions related thereto). In furtherance and not in limitation of the Fee Letterforegoing:
(a) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO Parent shall not permit any amendment amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Commitment Letter without the consent of the Company (such consent not to be unreasonably withheld, conditioned or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documentsdelayed) if such amendment, supplement, replacement, modification or waiver (Ai) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid paid) or original issue discount discount, unless (A) the Committed Financing is increased by a corresponding amount or (B) Parent or Merger Sub have a corresponding amount of available cash on hand such that the Committed Financing is otherwise made available to fund such fees or original issue discountrepresentation set forth in Section 4.07(a) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), will still be true and correct or (Bii) imposes new or additional conditions to the initial funding or otherwise expands, amends or modifies any of the conditions to the Committed receipt of the Financing, or otherwise expands, amends or modifies any other provision of the Commitment Letter, in a manner that would, in the case of this subclause (B), would reasonably be expected to (xA) delay or prevent or materially delay make less likely the Closing or the availability funding of the Committed Financing (or satisfaction of the conditions to the Financing) at the Acceptance Time or on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (yB) adversely impact the ability of AGCO Parent to enforce its rights against the other parties to the Commitment Letter or the definitive agreements with respect thereto, in any material respect each case, relating to the funding thereunder (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO Parent may (1) amend the Commitment Letter to add or such definitive documents to correct typographical errors, add additional replace lenders, arrangers and lead arrangers, bookrunners, syndication agents or reallocate commitments similar entities and (2) implement or assign exercise the “flex” provisions contained in one or reassign titles or roles to, or between or among, any entities party theretomore fee letters related to the Financing). AGCO Parent shall promptly deliver to Trimble the Company true, correct and complete copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO Parent shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (Ai) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consentLetter, (xii) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements the Definitive Financing Agreement with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter (including the including, as necessary, any “market flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Termsrelated thereto), (Ciii) satisfy (or, if deemed advisable by Parent, obtain the waiver of) on a timely basis all conditions to funding in receipt of the Commitment Letter amount of the Financing necessary to pay the aggregate amount of the aggregate Offer Price at the Acceptance Time and such definitive agreements with respect thereto the aggregate Per Share Merger Consideration at the Closing that are within its control (but excluding any condition where the failure to be so satisfied is a direct result of the Company’s failure to furnish information as required under Section 5.13 or the Company’s breach of any of its other obligations under Section 5.13) and, subject to upon satisfaction of all the conditions to fundingset forth in the Commitment Letter, to consummate the Committed Financing at or prior to the Closing DateClosing, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (Div) enforce its rights under the Commitment Letter Letter, including to cause the Financing Sources to fund at the Acceptance Time and any on the Closing Date the Financing and (v) to comply with its obligations under the Commitment Letter. In each case promptly upon the Company’s reasonable request, Parent shall keep the Company informed in reasonable detail of the status of its efforts to arrange the Financing and promptly provide to the Company at its request copies of all substantially final drafts and executed definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate for the Available Financing before the final day of the Marketing PeriodFinancing.
(c) AGCO shall give Trimble prompt notice Parent agrees to notify the Company reasonably promptly, and in any event within three (x3) Business Days, if at any time prior to the Effective Time (i) the Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Definitive Financing of which AGCO has Knowledge if such breach or default would result Agreement, (iii) a counterparty indicates in a material delay ofwriting that it will not provide, or in it refuses to provide, all or any way limit, the availability portion of the Committed FinancingFinancing contemplated by the Commitment Letter on the terms set forth in the Commitment Letter, (yiv) of the receipt of Parent receives any written notice or other communication, in each case written communication from any Committed Financing Source Person with respect to any actual or potential material breach, material default, termination or repudiation by any party to the any Commitment Letter or definitive agreements relating to the Committed Definitive Financing of any provisions of the Commitment Letter Agreement or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (zv) if at any time for any reason AGCO believes Parent determines in good faith that it will not be able to obtain all or any portion of the Committed Financing on necessary to pay the terms aggregate Offer Price and conditionsthe aggregate Per Share Merger Consideration; provided, that in the manner or from the Committed Financing Sources no event will Parent be under any obligation to disclose any information shared among Parent and its professional advisors in connection with matters contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause foregoing clauses (x), i) through (yiv) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or similar legal privilege. Without limiting Parent’s other privilege obligations under this Section 5.14, if AGCO the commitments with respect to all or any portion of the Financing expire or are terminated or all or any portion of the Financing otherwise becomes unavailable, then Parent shall have used its (i) promptly notify the Company of such event and the reasons therefor, (ii) use reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from the same or alternative financing sources in an amount at least equal sufficient to pay all amounts required to paid in connection with the unavailable portion thereofOffer, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter Merger and the Fee Letter (including the flex provisions therein) and other transactions contemplated by this Agreement, as promptly as reasonably practicable following the occurrence of such event. For event (the avoidance “Alternative Financing”), and (iii) obtain, and when obtained, provide the Company with a true, correct and complete copy of doubteach alternative financing commitment in respect of such Alternative Financing (each, a “New Commitment Letter”), together with all related fee letters (solely in the case of the fee letters, with only (A) the fee amounts, yield or interest rate caps, and original issue discount amounts and (B) “flex,” and other economic terms, in no each case under this clause (B) that are confidential and do not adversely affect the enforceability, availability or conditionality of or the aggregate amount of net proceeds available under such financing, contained therein redacted). In the event shall the reasonable best efforts obligation set forth any New Commitment Letter is obtained, (1) any reference in this Section 7.15 be construed so as Agreement to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flexFinancing” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in include the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type debt financing contemplated by the Commitment Letter as modified pursuant to clause (2) below, (2) any reference in connection with this Agreement to the Available Financing. Without limitation of “Commitment Letter” shall be deemed to include the generality of Commitment Letter which is not superseded by a New Commitment Letter at the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management time in question and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters New Commitment Letter to the extent contemplated then in effect, and (3) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Commitment Letter that is not superseded by or customary any New Commitment Letter at the time in the Available Financing question and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) each New Debt Commitment Letter to the extent reasonably requested by AGCO, (A) assisting then in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputationeffect.
Appears in 2 contracts
Sources: Merger Agreement (Telecommunication Systems Inc /Fa/), Merger Agreement (Comtech Telecommunications Corp /De/)
Financing. Parent has delivered to the Company true, correct and complete fully executed copies of the commitment letter, dated as of the date hereof, among Parent, Bank of America, N.A. and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, including all exhibits, schedules, annexes and amendments to such agreement in effect as of the date of this Agreement, and excerpts of those portions of each fee letter and engagement letter associated therewith that contain any conditions to funding or “flex” provisions (aexcluding provisions related solely to fees) regarding the terms and conditions of the financing to be provided thereby (collectively, the “Commitment Letter”), pursuant to which and subject to the terms and conditions thereof each of the parties thereto (other than Parent), have severally agreed and committed to provide the debt financing set forth therein (the “Financing”). The Commitment Letter has not been amended, restated or otherwise modified or waived prior to the date of this Agreement and the respective commitments contained in the Commitment Letter have not been withdrawn, modified or rescinded in any respect prior to the date of this Agreement. As of the date 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, subject to the Bankruptcy and Equity Exception. There are no conditions precedent, “flex” provisions or other substantive provisions regarding the terms and conditions of the Financing other than as expressly set forth in the Commitment Letter. Subject to the terms and conditions of the Commitment Letter, the net proceeds of the Financing, together with other financial resources of Parent including cash on hand and the proceeds of loans under existing revolving credit facilities of Parent on the Closing Date, will, in the aggregate, be sufficient for the satisfaction of all of Parent’s obligations under this Agreement, AGCO shall use its reasonable best efforts including the payment of any amounts required to obtain the Committed Financing (taking into account any reductions thereof be paid pursuant to Section 7.15(b)(AArticle II, and the payment of any debt required to be repaid, redeemed, retired, canceled, terminated or otherwise satisfied in connection with the Merger (including all indebtedness of the Company and its Subsidiaries required to be repaid, redeemed, retired, canceled, terminated or otherwise satisfied in connection with the Merger) (all such debt, the “Required Refinancing Indebtedness”) and of all fees and expenses reasonably expected to be incurred in connection herewith. As of the date of this Agreement, (i) no event has occurred which would constitute a breach or default (or an event which with notice or lapse of time or both would constitute a default)) , in each case, on the terms and conditions set forth in the Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Termspart of Parent or, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed FinancingKnowledge of Parent, such definitive documents) if such amendment, modification or waiver (A) with respect any other party to the Commitment Letter or the Fee Letter or such definitive documentsLetter, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in under the Commitment Letter or such definitive documents Letter, and (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (Bii) imposes new or additional conditions or otherwise expands, amends or modifies Parent does not have any reason to believe that any of the conditions to the Committed Financing, in a manner Financing will not be satisfied or that would, in the case Financing or any other funds necessary for the satisfaction of all of Parent’s obligations under this subclause (B), Agreement and the payment of the Required Refinancing Indebtedness and of all fees and expenses reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing be incurred in connection herewith will not be available to Parent on the Closing Date taking into account Date. Parent has fully paid all fees required to be paid prior to the expected timing date of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties this Agreement pursuant to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputation
Appears in 2 contracts
Sources: Merger Agreement (Silgan Holdings Inc), Merger Agreement (Graham Packaging Co Inc.)
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO shall Purchaser will, and will cause MIFSA to, use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth described in the Debt Commitment Letter and the Debt Fee Letter (including any “flex” provisions in related thereto) on or prior to the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing TermsClosing Date, and AGCO shall not permit will cause MIFSA to not, without the Company’s prior written consent, agree to any amendment or modification to be made to, or any waiver of any provision or remedy under, the Debt Commitment Letter or the Debt Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (Ai) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing to an amount that, together with the Purchaser’s and its Affiliates’ cash on hand or available committed credit facilities, would be less than an amount of fees to that would be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available required to fund the cash payments required to consummate the transactions contemplated hereby, (ii) adds new (or expands or adversely changes any existing) conditions to obtaining the Financing unless such fees amendment, modification or original issue discount) from waiver results in conditions that contemplated are in the aggregate substantially equivalent to the conditions in the Debt Commitment Letter and the Debt Fee Letter immediately prior to such amendment, modification or such definitive documents waiver (other than in accordance with or that are more favorable to the Purchaser and its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), Affiliates) or (Biii) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), would reasonably be expected to (xA) prevent or materially delay or prevent the Closing or Closing, (B) make the availability funding of the Committed Financing on the Closing Date taking into account the expected timing (or satisfaction of the Closing Date, taking into account conditions to obtaining the expected timing of the Marketing Period, Financing) materially less likely to occur or (yC) materially adversely impact the ability of AGCO MIFSA or its Affiliates to enforce its rights against the other parties to the Debt Commitment Letter in any material or the definitive agreements with respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”)thereto; provided, however, that subject Purchaser may cause MIFSA to compliance with amend or replace the other provisions of this Section 7.15, AGCO may amend the Debt Commitment Letter or such definitive documents the Debt Fee Letter to correct typographical errors, (i) add additional lenders, arrangers and lead arrangers, bookrunners, syndication agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any similar entities party thereto. AGCO shall promptly deliver to Trimble copies who had not executed the Debt Commitment Letter as of any such amendment, modification or replacement. For purposes the date of this Section 7.15 and Section 5.6 and Agreement or (ii) implement or exercise any “flex” provisions provided in the definitions of, and references to, Debt Fee Letter as in effect on the Financing, any Committed Financing Source, any Financing Source, references date of this Agreement. Purchaser will cause MIFSA to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (AI) maintain in effect the Debt Commitment Letter in accordance with Letter, (II) satisfy (or, if deemed advisable by MIFSA, obtain the terms waiver of, and subject cause each of its Affiliates to satisfy) on a timely basis all conditions to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consentFinancing that are within Purchaser and its Affiliates’ control, (xIII) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Debt Commitment Letter or consistent in all material respects with the Debt Commitment Letter and the Debt Fee Letter (including the any “flex” provisions included in contained therein) and (IV) draw a sufficient amount of the Fee Letter) (or on such other terms that are acceptable Financing to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, enable Purchaser to consummate the Committed Financing at or prior to transactions contemplated hereby, in the Closing Date, as applicable, including using its reasonable best efforts to cause event that the lenders conditions set forth in Sections 7.01 and 7.02 and the other persons committing conditions to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing have been satisfied or waived (other than those conditions that by their nature are to be satisfied on the Closing Date). Purchaser shall cause the net proceeds from the Financing to be available to Purchaser on the Closing Date. Upon the request of the Company or Seller, Purchaser will keep Seller and the Company reasonably informed on a reasonably current basis of the status of Purchaser’s efforts to obtain the Financing, including providing Seller with prompt notice of (x) any repudiation, termination or breach of the Debt Commitment Letter by any party thereto, of which Purchaser becomes aware and (y) of the receipt occurrence of any written notice other event or other communication, in each case from any Committed Financing Source with respect development that would reasonably be expected to any actual or potential material breach, material default, termination or repudiation by any party to materially adversely impact the Commitment Letter or definitive agreements relating to the Committed Financing ability of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able Purchaser to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(db) Prior The Company agrees to, and to the Closingcause its Subsidiaries to, Trimble shall use its reasonable best efforts to, prior to the earlier of the Closing Date and the termination of this Agreement in accordance with its terms, provide to AGCO, such assistance (and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective its Subsidiaries’ Representatives, Representatives to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that such assistance) with the Financing as is necessary and customarily required for financings customary with Financings of the type contemplated by the Debt Commitment Letter in connection with (including the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(isenior notes offering contemplated thereby) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with requested by Purchaser, including: (a) participation in, and assistance with, the marketing efforts of AGCO and related to the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the including assisting Purchaser with Purchaser’s preparation of materials for rating agency presentations, offering documentscustomary confidential information memoranda, private placement memoranda, prospectuses, bank information offering memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of other customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation marketing materials and information as is reasonably requested in writing deemed necessary by the Financing Sources at least six to complete a successful syndication for delivery to potential syndicate members and participants; (6b) Business Days prior to the Closing Date about participation by senior management, representatives and advisors of the Company or Trimble in, and assistance with, the preparation of rating agency presentations and meetings with rating agencies, roadshows, due diligence sessions, drafting sessions and meetings with prospective lenders and debt investors (including, for the avoidance of doubt, direct contact with such rating agencies and prospective lenders and debt investors), in each case, at such times as coordinated reasonably in advance thereof; (c) delivery to Purchaser and its Subsidiaries that Financing Sources as promptly as reasonably practicable of (i) the documentation and other information requested by the Financing Sources reasonably determine is required by regulatory authorities under with respect to (x) applicable “know your know-your-customer” and anti-money laundering rules and regulations, including, without limitation, including the PATRIOT ActAct and (y) the U.S. Treasury Department’s Office of Foreign Assets Control and the FCPA (and, includingin any event, if at least three (3) Business Days prior to the Closing Date, to the extent requested at least nine (9) days prior to the Closing Date), (ii) the Financing Information relating to the Company qualifies as a “legal entity customer” under and (iii) such other financial information relating to the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) Company customary or reasonably necessary for the completion of the Financing to the extent reasonably requested by AGCOPurchaser in connection with the preparation of customary offering or information documents to be used for the Financing (which financing information, directing for the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) avoidance of the Business doubt, may be included in any such offering or information documents relating used for or distributed in connection with the Financing); (d) direct its independent auditors to cooperate with the Committed Financing that consists consistent with their customary practice, including by providing customary “comfort letters” (including customary “negative assurances”) and customary assistance with the due diligence activities of Rule 144A marketed debt securities in which Purchaser and its Affiliates and the combined financial statements of the Business are includedFinancing Sources, and, if required, and customary consents to the use inclusion of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial relevant marketing materials, registration statements of the Business are includedand related government filings, in each case subject to such auditors’ customary policies case, in connection with any proposed issuance and procedures sale of securities; (e) assisting Purchaser with preparing pro forma financial information regarding the Company and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment as part of Purchaser’s preparation of pro forma financial information and pro forma financial statements for Purchaser and its Subsidiaries on a consolidated basis and other materials for rating agency presentations, bank information memoranda, offering or other private placement memoranda, financial projections for the Company as part of the consolidated business of Parent and its Subsidiaries, and not on a stand-alone basis, and similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability documents used in connection with the Available Financing not contingent upon and assisting Purchaser in preparing customary estimates and other forward looking financial information regarding the occurrence future performance of the Closing Date or Company as a part of the consolidated business of Parent and its Subsidiaries, and not on a stand-alone basis, to the extent reasonably requested by the Financing Sources, and providing customary management representation letters to its accountants in relation to its accountants’ providing “comfort letters” in connection with any securities offering made as part of the Financing (D“Representation Letters”); (f) executing and delivering definitive financing documents (but excluding, for the avoidance of doubt, authorization letters), including certificates (but not solvency certificates), Representation Letters, and other documents, to the extent reasonably requested by Purchaser; and (g) assisting Purchaser and its Affiliates in causing the conditions precedent in the Debt Commitment Letter to the Financing to be required to take satisfied. If at any action that will (x) conflict with or violate ▇▇▇▇ ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (believes in good faith that it has delivered to Purchaser all Financing Information and such Financing Information is Compliant, it may deliver a written notice to Purchaser to such effect, in which case the extent any provision creating such conflict was not created in contemplation Financing Information shall be deemed to have been delivered and to be Compliant as of the Available Financingdate of delivery of such notice, unless Purchaser in good faith reasonably believes either any Financing Information has not been received or is not Compliant and, within five (5) consecutive Business Days after the date of Purchaser’s receipt of the aforementioned notice, delivers a written notice to Seller to that effect and stating with specificity what Financing Information it believes it has not received or is not Compliant; provided, however, that (x) for the avoidance of doubt, notwithstanding such five (5) consecutive Business Day period, if Purchaser does not deliver any Laws or such written notice during such period, the Financing Information shall be deemed to have been delivered, and to be Compliant, as of the date of delivery of Seller’s notice described above, and such five (5) Business Day period shall not be deemed in any way to extend the 15 consecutive Business Day period specified in Section 2.01(ii)(A), and (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation irrespective of the provisions in delivery of such a notice by Seller, the Company shall continue to comply with its obligations under this Section 7.15(d). Trimble 6.12(b) in all respects.
(c) The Company hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, provided that such trademarks and logos are used solely in a manner that is not intended to nor or reasonably likely to harm or disparage Trimble the Company or its Subsidiaries or the reputation or goodwill of the Company or its Subsidiaries. Notwithstanding any other provision set forth herein or in any other agreement between the Company and Purchaser (or its affiliates), the Company agrees that the Purchaser and its affiliates may share customary projections with respect to the Company as part of the consolidated business of Parent and its Subsidiaries, and not on a stand-alone basis, that the Company assisted the Purchaser in preparing in accordance with Section 6.12(b) with the Financing Sources identified in the Debt Commitment Letter, and that Purchaser, its affiliates and such Financing Sources may share such information with potential Financing Sources in connection with any marketing efforts in connection with the Financing, provided that the recipients of such information agree to customary confidentiality agreements. Notwithstanding the requirements of Section 6.12(b), (i) neither the Company nor any of its Affiliates or their respective Representatives shall be required to enter into any letter, certificate, document, agreement or instrument that will be effective prior to the Closing (other than Representation Letters), (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Subsidiaries, (iii) nothing herein shall require the Company (A) to cause its legal counsel to deliver any legal opinions or (B) to deliver any authorization letters or any certificate as to solvency by Seller or the Company or its Subsidiaries, and (iv) nothing herein shall require the Company to provide or deliver (1) subject to Section 6.15, any audited or unaudited financial statements not (x) delivered or provided to Purchaser prior to the date hereof or (y) otherwise constituting Financing Information, or (2) any financial information with respect to a month or fiscal period that has not yet ended or that has ended less than 45 days prior to the date of such request.
(d) Whether or not the Closing occurs, Purchaser will promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries (other than with respect to any costs associated with preparing its regular quarterly and annual financial statements) in connection with the cooperation of the Company and its Subsidiaries contemplated by Section 6.12(b). Purchaser will indemnify and hold harmless the Company, its Affiliates and their respective Representatives from and against any and all losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with the reputationarrangement of the Financing (including any action taken in accordance with this Section 6.12) and any assistance or activities in connection therewith, in each case other than to the extent any of the foregoing arises from the bad faith, gross negligence or willful misconduct of, or breach of this Agreement by any such Person.
(e) Notwithstanding anything herein to the contrary, in no event shall any failure to obtain any Financing nor any failure to fund any Financing relieve Purchaser of any obligation under or in respect of this Agreement, including the obligation to timely consummate the transactions contemplated by this Agreement as required hereby, and neither the obtaining nor the availability or funding of any Financing shall constitute a condition to Purchaser’s obligation to timely consummate the transactions contemplated by this Agreement as required hereby. Purchaser reaffirms its obligation to consummate the transactions contemplated by this Agreement irrespective and independently of the availability of the Financing, subject to satisfaction or waiver of the conditions set forth in Article VII.
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Mallinckrodt PLC)
Financing. (a) Subject IDB Buyer acknowledges and agrees that Seller and its Affiliates and its and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, any financing that IDB Buyer may raise in connection with the transactions contemplated by this Agreement and that IDB Buyer shall indemnify and hold harmless Seller and its Affiliates and its and their respective Representatives from and against any and all losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with the Debt Financing (including any claims asserted by the Financing Sources) and any information utilized in connection therewith.
(b) IDB Buyer shall, and shall cause its Representatives and Affiliates to, take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to arrange and consummate the Debt Financing as soon as reasonably practical after the date of this Agreement, but in any event prior to the Closing and to obtain the proceeds of the Debt Financing on the terms and conditions, taken as a whole (including the flex provisions) described in the Debt Commitment Letter, including executing and delivering all such documents and instruments as may be reasonably required thereunder, including definitive agreements with respect to the financing on the terms and conditions of this Agreementcontained in the Debt Commitment Letter (the "Debt Financing Documents") and:
(i) complying with and maintaining in effect the Debt Financing and the Debt Commitment Letter, AGCO shall use its reasonable best efforts to obtain negotiating and entering into definitive Debt Financing Documents with respect thereto (and maintaining in effect and complying with the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)terms thereof) on the terms and conditions (as such terms may be modified or adjusted in accordance with the terms of, and within the limits of, any "flex" provisions set forth in the Debt Commitment Letter (including as specified in any “flex” provisions Fee Letter provided pursuant to Section 3.11)) no less favorable, taken as a whole, to IDB Buyer than those contained in the Fee Debt Commitment Letter) or on such other terms and conditions that are acceptable to AGCO so long , which agreements shall be in effect as such other terms and conditions constitute Permitted promptly as practicable after the date hereof, but in no event later than the Closing Date; provided, however, that, without limiting the foregoing, in no event shall any of the Debt Financing Terms, and AGCO Documents (nor shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, supplement, waiver or other modification or waiver thereto be reasonably expected to): (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces reduce the aggregate amount of the Committed Debt Financing provided for in the Debt Commitment Letter (including by changing the amount of fees or original issue discount contemplated by the Debt Commitment Letter other than, solely with respect to original issue discount, as expressly set forth therein unless after giving effect to the maximum amount of any such deduction, the aggregate net proceeds from the Debt Financing are and will be sufficient in amount to provide IDB Buyer with the funds necessary to consummate the transactions contemplated hereby and to satisfy its obligations under this Agreement, including to pay the Purchase Price, and the payment of all fees, costs and expenses to be paid by IDB Buyer related to the transactions contemplated by this Agreement, including such fees and expenses relating to the Debt Financing); (B) expand the conditions or other contingencies to the receipt or funding of the Debt Financing beyond those expressly set forth in the Debt Commitment Letter, amend or modify any of such conditions or other contingencies in a manner adverse to IDB Buyer or Seller (including by making any such conditions or other contingencies less likely to be satisfied) or impose any new or additional condition or other contingency to the receipt or funding of the Debt Financing; (C) contain terms (other than those terms expressly set forth in the Debt Commitment Letter that would reasonably be expected to (1) prevent, impede or delay the consummation of the transactions contemplated by this Agreement or the Debt Commitment Letter or the date on which the Debt Financing would be obtained, or (2) make the funding of Debt Financing less likely to occur; (D) adversely impact the ability of IDB Buyer to enforce its rights against the Financing Sources; or (E) impose obligations on Seller and its Affiliates;
(ii) satisfying, or causing its Representatives to satisfy, as promptly as practicable and on a timely basis all conditions to the Debt Financing contemplated by the Debt Commitment Letter and Debt Financing Documents relating thereto (including by paying any commitment, engagement or placement or other fees that become due and payable under or with respect to the Debt Commitment Letter or Debt Financing Documents);
(iii) accepting (and complying with) to the fullest extent all "market flex" provisions contemplated by the Debt Commitment Letter and the Debt Financing Documents;
(iv) obtaining all rating agency approvals necessary to obtain the Debt Financing;
(v) enforcing its rights under the Debt Commitment Letter and Debt Financing Documents in the event of a breach by the Financing Sources under the Debt Commitment Letter and Debt Financing Documents relating thereto; and
(vi) causing the Financing Sources and any other Persons providing Debt Financing to fund the Debt Financing in immediately available funds at the time the Closing is required to occur pursuant to the terms and conditions hereof.
(c) IDB Buyer shall not agree to or permit any amendment, supplement or other modification or replacement of, or grant any waiver of any condition, remedy or other provision under, the Debt Commitment Letter or the Debt Financing Documents without the prior written consent of Seller if such amendment, supplement, modification, replacement or waiver would or would reasonably be expected to (i) reduce the aggregate amount of the Debt Financing (including by increasing changing the amount of fees to be paid or original issue discount unless contemplated by the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available Debt Commitment Letter other than, solely with respect to fund such fees or original issue discount) , as expressly set forth therein unless after giving effect to the maximum amount of any such deduction, the aggregate net proceeds from the Debt Financing are and will be sufficient in amount to provide IDB Buyer with the funds necessary to consummate the transactions contemplated hereby and to satisfy its obligations under this Agreement, including to pay the Purchase Price, and to pay all fees, costs and expenses to be paid by IDB Buyer related to the transactions contemplated by this Agreement, including such fees and expenses relating to the Debt Financing), from that contemplated in by the Debt Commitment Letter or such definitive documents delivered as of the date hereof, (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (Bii) imposes impose new or additional conditions or otherwise expandsexpand, amends amend or modifies modify any of the conditions to the Committed Financing, receipt or funding of the Debt Financing in a manner adverse to Seller or IDB Buyer, (iii) make it less likely that would, in the case of this subclause Debt Financing would be funded (B), reasonably be expected including by making the conditions to (xobtaining the Debt Financing less likely to occur) or otherwise prevent or materially delay or impair the Closing ability or likelihood of IDB Buyer to timely consummate the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Datetransactions contemplated by this Agreement, taking into account the expected timing of the Marketing Period, or (yiv) adversely impact the ability of AGCO IDB Buyer to enforce its rights against the other parties to the Debt Commitment Letter or (v) otherwise contravene the limitations set forth in Section 5.16(b)(i)(A)-(E). IDB Buyer shall not agree to the withdrawal, repudiation, termination or rescission of the Debt Commitment Letter or Debt Financing Documents or any provision thereof without the prior written consent of Seller. Upon any amendment, supplement or modification of the Debt Commitment Letter in any material respect (the terms of any accordance with this Section 5.16(c), IDB Buyer shall deliver a copy thereof to Seller and references herein to "Debt Commitment Letter" shall include such amendmentdocuments as amended, modification supplemented or waiver not modified in violation of these clauses (Acompliance with this Section 5.16(c) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed "Debt Financing” " shall include the financing contemplated by the Debt Commitment Letter (as amended, supplemented or definitive financing documents related thereto) as permitted by modified in compliance with this Section 7.15(a) to be amended, modified or replaced 5.16 and references to “Commitment Letter” shall include such document as permitted the financing contemplated by the Debt Financing Documents entered into in compliance with this Section 7.15(a) to be amended5.16, modified or replacedas applicable.
(bd) AGCO shall use its reasonable best efforts (taking into account In the anticipated timing event that all or any portion of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with Debt Financing becomes or could become unavailable on the terms and subject to conditions (including any "flex" provisions) or from the conditions thereofsources contemplated in the Debt Commitment Letter or the Debt Financing Documents for any reason or the Debt Commitment Letter or the Debt Financing Documents shall be withdrawn, provided thatrepudiated, AGCO may, terminated or rescinded for any reason (but without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with limiting the Committed Financing, obligations of IDB Buyer in the “Available Financing”penultimate sentence of Section 5.16(c) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related theretoin Section 5.16(b)(v) ), (yi) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale IDB Buyer shall immediately so notify Seller and (zii) reduce and/or replace IDB Buyer shall arrange and obtain, as promptly as practicable following the aggregate amount occurrence of such event (and in any event no later than the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (xClosing Date), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, shall negotiate and enter into definitive agreements with respect to to, alternative financing from the Committed Financing contemplated by same or alternative sources (the Commitment Letter on the terms and conditions contained "Alternative Financing") in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, an amount sufficient to consummate the Committed transactions contemplated by this Agreement and pay all related fees and expenses (or replace any unavailable portion of the Debt Financing), and shall obtain a new financing commitment letter (including any associated engagement letter and related fee letter) with respect to such Alternative Financing at (collectively, the "New Debt Commitment Letter"), copies of which shall be promptly provided to Seller. Notwithstanding the foregoing, no New Debt Commitment Letter may expand upon the conditions precedent or prior contingencies to the Closing Date, as applicable, including using its reasonable best efforts to cause funding or receipt of the lenders and the other persons committing to fund the Committed Debt Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Debt Commitment Letter and in effect on the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO date hereof or any of its Affiliates to (i) agree to, or accept, economic otherwise include terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions"flex" provisions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to make the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, likelihood that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputationsuch
Appears in 2 contracts
Sources: Purchase Agreement (Jersey Partners Inc.), Purchase Agreement (Jersey Partners Inc.)
Financing. (ai) Subject to Section 6.9(a)(iii), Parent and Merger Sub shall use reasonable best efforts to take, or cause to be taken, as promptly as practicable after the date hereof but taking into effect the provisions of Section 2.2, all actions, and to do, or cause to be done, all things necessary to arrange, obtain and, on or prior to the Closing Date, consummate (x) the Debt Financing on the terms and conditions described in or contemplated by the Debt Commitment Letter (including complying with any request requiring the exercise of this Agreementso-called “market flex” provisions in the fee letter) and (y) if applicable, AGCO any Permanent Financing on the terms and conditions contemplated thereby, including using reasonable best efforts to (A) (I) maintain in effect the Debt Commitment Letter (subject to the provisions of Section 6.9(a)(iii)) and to consummate the Debt Financing and, if applicable, any Permanent Financing at or prior to the Closing and (II) comply with their obligations under the Debt Commitment Letter and the Definitive Financing Agreements and enforce their rights under the Debt Commitment Letter and the Definitive Financing Agreements and (B) subject to the provisions of Section 6.9(a)(iii), negotiate, enter into and deliver definitive agreements with respect to (x) the Debt Financing reflecting the terms contained in the Debt Commitment Letter (including any “market flex” provisions applicable thereto) or on terms that, taken as a whole, are no less favorable in the aggregate to Parent than the terms contained in the Debt Commitment Letter (including any “market flex” provisions applicable thereto) or (y) if applicable, any Permanent Financing or the terms and conditions contemplated thereby, in each case, which terms shall not in any respect expand on the conditions to the funding of the Financing at the Closing or reduce the aggregate amount of the Financing available to be funded at the Closing below the amount required to fund the Required Payments (any such definitive agreement, the “Definitive Financing Agreements”). Upon written request, Parent shall inform the Company of the status of Parent’s efforts to obtain the Debt Financing and, if applicable, any Permanent Financing in reasonable detail and shall promptly respond to any written request from the Company concerning such status. Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, after Parent has knowledge thereof, if at any time prior to the Closing Date (x) the Debt Commitment Letter or any of the commitments with respect to the Debt Financing thereunder or any Definitive Financing Agreement entered into in replacement of all or a portion of the Debt Financing contemplated by the Debt Commitment Letter or in connection with any Permanent Financing, as applicable, shall expire or be terminated (except, in the case of the Debt Commitment Letter only, in accordance with the terms of Section 6.9(a)(iii)), (y) for any reason, all or a portion of the Financing under the Debt Commitment Letter or under any Definitive Financing Agreement entered into in replacement of all or a portion of the Debt Financing contemplated by the Debt Commitment Letter or in connection with any Permanent Financing becomes unavailable (except in accordance with the terms of Section 6.9(a)(iii)) or (z) any Debt Financing Source or any other Person that is a party to the Debt Commitment Letter or any Definitive Financing Agreements breaches, defaults or repudiates the Debt Commitment Letter or such Definitive Financing Agreement and which breach, default or repudiation would reasonably be expected to adversely affect the conditionality, timing, availability or amount of the Financing necessary to fund the Required Payments. To the extent that Parent reasonably believes in good faith that it will not have funds available that are sufficient to enable it to make the Required Payments or if Parent otherwise becomes aware that any portion of the Financing has become unavailable under the Debt Commitment Letter or under the Definitive Financing Agreements, except in accordance with the terms of Section 6.9(a)(iii) (and Parent shall not agree or consent to such Debt Financing becoming unavailable except as permitted under Section 6.9(a)(iii)), 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 necessary to arrange and obtain alternative financing from the Committed same or alternative sources (A) with conditions to the funding of such alternative financing not more onerous, when taken as a whole, than those conditions contained in the Debt Commitment Letter as of the date of this Agreement) and (B) in an amount sufficient (when taken together with the proceeds of any other financing that has already been obtained in accordance with Section 6.9(a)(iii)) to pay the Required Payments (such alternative financing, the “Alternative Financing”); provided that, Parent shall have no obligation to pay any fees in excess of what it was obligated to pay under the original Debt Commitment Letter nor obtain Financing on terms (including with respect to interest rates) materially worse than the terms contained in the original Debt Commitment Letter as in effect on the date of this Agreement. Parent shall promptly deliver to the Company true and complete copies of all agreements pursuant to which any such alternative source shall have committed to provide Parent and Merger Sub with any portion of the Financing necessary to fund the Required Payments.
(ii) In the event the Debt Financing (taking into account or any reductions Permanent Financing or Equity Financing) or any portion thereof pursuant is funded in advance of the Closing Date, then Parent, Merger Sub or any other applicable subsidiary thereof shall keep and maintain the availability at all times prior to Section 7.15(b)(A)the Closing Date the proceeds of the Debt Financing (or any Permanent Financing or Equity Financing) on solely for the purpose of funding the transactions contemplated by this Agreement, including the Required Payments; provided that if the terms and conditions set forth of the Debt Financing (or any Permanent Financing or Equity Financing) require the proceeds of the Debt Financing (or any Permanent Financing or Equity Financing) to be held in escrow (or similar arrangement) pending the Commitment Letter (including any “flex” provisions consummation of the transactions contemplated under this Agreement, then such proceeds may be held in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO escrow, so long as the conditions to the release of such other terms and funds are no more onerous to Parent than the conditions constitute Permitted to borrowing of the Debt Financing Termscontemplated by the Debt Commitment Letter.
(iii) Except as otherwise provided in this Section 6.9(a)(iii), and AGCO neither Parent nor Merger Sub shall not agree to or permit any amendment amendment, supplement, modification, termination or modification to be made toreduction of, or grant any waiver of of, any condition, remedy or other provision under, under the Debt Commitment Letter or any Definitive Financing Agreement without the Fee Letter (or following entry into definitive documents relating to prior written consent of the Committed Financing, such definitive documents) Company if such amendment, modification supplement, modification, termination, reduction or waiver would or would reasonably be expected to (A) with respect to delay or prevent the Commitment Letter or the Fee Letter or such definitive documentsClosing, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes impose new or additional conditions or otherwise expands, amends or modifies expand any of the conditions to the Committed funding of the Debt Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (yC) adversely impact the ability of AGCO Parent or Merger Sub to obtain the Financing or (D) adversely impact the ability of Parent or Merger Sub to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Debt Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Definitive Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, Agreement; provided that, AGCO maynotwithstanding anything in this Section 6.9(a) to the contrary, without ▇▇▇▇▇▇▇’▇ consentParent or Merger Sub may (w) amend, supplement or modify the Debt Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Commitment Letter as of the date of this Agreement, (x) enter into other debt financing arrangements and thereby reduce all or a portion of the aggregate amount of the Debt Financing by the amount of, or the amount of any commitment (but not for the avoidance of doubt pursuant to revolving credit or other working capital facilities, other than with respect to amounts actually drawn thereunder on the Closing Date and immediately funded in accordance with this Agreement to make the Required Payments) for, any such debt financing so long as the conditions to funding under such debt financing arrangements satisfy clauses (A) through (D) above (as determined by Parent in good faith) (any such debt financing, a “Permanent Financing” and, together with the Committed Debt Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the aggregate amount of the Committed Debt Financing by the net proceeds raised by AGCO Parent and/or any of its Subsidiaries through any equity financing or asset sale Equity Financing and (z) reduce and/or replace the aggregate amount of the Committed Debt Financing by the amount of Cash on hand available to AGCO, in the case net proceeds from any sale or other disposition of each of clauses any assets or property thereof (x), (y“Asset Sales”) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing received at or prior to such reduction or replacement. Upon any amendment, supplement, modification, termination, reduction or waiver of the Closing DateDebt Commitment Letter in accordance with this Section 6.9(a)(iii) or any replacement of the Debt Commitment Letter otherwise in accordance with Section 6.9(a)(i), (i) references herein to “Debt Commitment Letter” shall include such document as applicableamended, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”supplemented, modified, terminated, reduced or waived in compliance with this Section 6.9(a)(iii) or replaced otherwise in accordance with Section 6.9(a)(i) and (Dii) enforce its rights under references to “Debt Financing” shall include the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources financing contemplated by the Debt Commitment Letter as amended, supplemented, modified or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to waived in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information compliance with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing6.9(a). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputation
Appears in 2 contracts
Sources: Merger Agreement (DJO Finance LLC), Merger Agreement (Colfax CORP)
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO 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 to arrange, consummate and obtain the Committed proceeds of the Debt Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions not less favorable than those set forth in the Commitment Letter Loan Agreement Amendment on or prior to the Closing Date (including any “flex” provisions but not limited to reasonable best efforts to (i) maintain in effect the Loan Agreement Amendment and the Amended Loan Agreement (as defined in the Fee LetterLoan Agreement Amendment), (ii) satisfy on a timely basis (or on such other terms and seek waiver of) all conditions to the Debt Financing that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Termswithin Parent’s or any of its Affiliate’s control, and AGCO (iii) in the event that the conditions set forth in Article VIII have been satisfied or, upon funding, would be satisfied or waived, draw an amount of the Debt Financing which, together with the cash on hand of Parent and the net proceeds of any offering of debt securities, is at least equal to the Required Amount. Parent shall not permit any amendment not, without the Company’s prior written consent, amend, modify, replace, terminate or modification agree to be made to, or any waiver of any provision under, under the Commitment Letter Loan Agreement Amendment or the Fee Letter Amended Loan Agreement (or following entry into definitive documents relating to as defined in the Committed Financing, such definitive documentsLoan Agreement Amendment) if such amendment, modification modification, replacement, termination or waiver (Ai) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Debt Financing (including by increasing to an amount that, together with Parent’s cash on hand and the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from net proceeds of other sources any offering of financing or cash or otherwise in accordance with Section 7.15(b)(A))debt securities, would be less than the Required Amount or (Bii) imposes changes the conditions to obtaining the Debt Financing or adds new or additional conditions or otherwise expands, amends or modifies any of precedent to obtaining the conditions to the Committed Debt Financing, in a manner that would, in the case of this subclause (B), if such change would reasonably be expected to (xA) prevent or materially delay or prevent the Closing or Closing, (B) make the availability funding of the Committed Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, ) materially less likely to occur or (yC) materially adversely impact the ability of AGCO the Parent to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B)Loan Agreement Amendment, the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter Amended Loan Agreement (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, defined in the case of each of clauses (x), (yLoan Agreement Amendment) and (z), to or the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees ; provided, however, that AGCO shall Parent may amend the Amended Loan Agreement to add lenders who had not be required to consummate executed the Available Financing before Loan Agreement Amendment or the final day Amended Loan Agreement (as defined in the Loan Agreement Amendment) as of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party date hereof. Notwithstanding anything to the Commitment Letter or definitive agreements relating contrary contained in this Agreement, subject to the Committed Financing of which AGCO has Knowledge if such breach terms and conditions hereof, Parent shall have the right to substitute other debt or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time equity financing for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Debt Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to Loan Agreement Amendment from the Committed Financing. As soon same and/or alternative Financing Sources so long as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that such substitute financing is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts funding conditions that, when taken as a whole, are not less favorable to disclose Parent than the funding conditions set forth in the Loan Agreement Amendment and so long as such information in a way that substitute financing would not waive such privilegeadversely impact the ability of Parent to obtain the Required Amount on a timely basis. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in If any portion of the Committed Debt Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including or within the flex provisions) timing contemplated in the Commitment Letter and Fee LetterLoan Agreement Amendment, and such portion is reasonably required to effect or the ClosingLoan Agreement Amendment or the Amended Credit Agreement (as defined in the Loan Agreement Amendment) shall be terminated or modified for any reason (but without waiving any responsibility or liability for breach by Parent of its obligations under this Agreement), AGCO then Parent shall use its their reasonable best efforts to promptly and in consultation with the Company arrange and to obtain alternative debt financing commitments (together with any replacements or substitutions of any of the foregoing from time to time in replacement thereof alternative financing (accordance with the terms hereof, any “Alternative Debt Financing”) from alternative sources lenders in an amount at least equal amount, when taken together with the cash on hand of Parent and the net proceeds of any offering of debt securities, not less than the Required Amount. The obligations of Parent hereunder shall apply equally to any such Alternative Debt Financing (including any new financing commitment). Upon the written request of the Company, Parent shall keep the Company reasonably informed on a reasonably current basis in reasonable detail of the status of its efforts to arrange such Alternative Debt Financing and shall, upon request, provide true and correct copies of all documents related to any Alternative Debt Financing to the unavailable portion thereofCompany promptly upon their execution. The terms “Debt Financing” and “Loan Agreement Amendment” as used herein shall be deemed to include the Debt Financing or Loan Agreement Amendment, as the case may be be, that is not so superseded at the time in question or that is amended, supplemented, modified, superseded or replaced in accordance with the terms hereof and any Alternative Debt Financing entered into in accordance herewith to the extent then in effect
(taking into account any reductions thereof b) Subject to Section 7.5, during the period commencing on the date of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter Article IX and the Fee Letter (including Effective Time, the flex provisions therein) Company shall, and shall use reasonable best efforts to cause its Representatives to, prepare and furnish to Parent and the Financing Sources as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to request therefor (i) agree to, or accept, economic terms that are materially less favorable information regarding the Company and its Subsidiaries (including information to AGCO, as determined be used in the reasonable judgment preparation of AGCOone or more information packages regarding the business, than the economic terms contained in the Commitment Letter operations, financial projections and the Fee Letter (assuming the application prospects of the “market flex” provisionsCompany and its Subsidiaries) customary for the arrangement of loans contemplated by the Debt Financing or customary for the offering and placement of debt securities, to the extent reasonably requested by Parent to assist in preparation of customary rating agency or lender presentations, bank information, offering or private placement memoranda, prospectuses and similar documents relating to such arrangement of loans or placement of debt securities and (ii) seek all consolidated financial statements, historical business and other financial data, and audit reports of the Company and its Subsidiaries, and any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that supplements thereto required in connection with any Alternative Debt Financing shall and any other information required or reasonably necessary for the preparation of customary offering or private placement memoranda or prospectuses in connection with an offering of debt securities in connection with such Alternative Debt Financing, including the Company SEC Reports; provided, that the Company SEC Reports will be permitted deemed provided when they are timely filed with the SEC (the information referred to be in clause (ii) being referred to in this Agreement as the form of any such equity financing“Required Information”). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(dc) Prior Subject to Section 7.1(d), during the Closingperiod commencing on the date of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX and the Effective Time, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to providethe Company shall, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ RepresentativesRepresentatives to, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management provide Parent with all customary and Representatives of Trimblenecessary cooperation, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO Parent in connection with obtaining the Debt Financing, including, without limitation, by:
(i) using reasonable best efforts to make the Company’s senior management and its Representatives available to participate in a reasonable and customary number of (A) meetings, due diligence sessions, drafting sessions, and meetings with the Financing Sources and/or prospective lenders in connection with any Alternative Debt Financing and (B) presentations, road shows and sessions with rating agencies in connection with any Alternative Debt Financing;
(ii) solely in connection with any Alternative Debt Financing, assisting in the preparation of materials for those sections of any rating agency presentations, offering documentsmemoranda, private placement memoranda, prospectusesroad show presentations, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder)including, including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version necessary, (A) an additional bank information memorandum that does not include information that constitutes material non-public information regarding Trimble of the Company or its securities within the Business meaning of United States federal and state securities laws and (B) authorization letters), prospectuses and similar documents (including, if applicable, the delivery of one or more customary representation letters), including any supplements to the foregoing, that relate to the Company and its business, operations and prospects, in each case that are required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain CompliantAlternative Debt Financing;
(iii) using reasonable best efforts to obtain the extent reasonably requested consent of, and customary comfort letters (including customary “negative assurance” comfort and change period comfort) from, the Company’s past and present auditors (including by AGCO, providing customary management letters and requesting legal letters to obtain such consent) if necessary or desirable for Parent’s use of the Company’s financial statements in connection with any Alternative Debt Financing;
(iv) (A) assisting in the preparation ofof and, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directorsClosing, officers executing one or more credit or other agreements, as well as any pledge and managers are to remain as directorssecurity documents, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, other definitive financing documents, agreements collateral filings or other certificates or documents as may be reasonably requested by Parent in connection with the Debt Financing and certificates are contingent upon otherwise reasonably facilitating the occurrence ofgranting and perfection of security interests in and the pledging of collateral (including the delivery of original share certificates, or only effective as oftogether with share powers executed in blank, with respect to the Closing Company) and (B) assisting AGCO with entering into arrangements to replace reasonably facilitating the guarantees, letter taking of credit and surety bond obligations in effect all corporate actions by the Company with respect to the Business;
(iv) assisting with the discharge entering such definitive financing documents and termination of any Liens on the assets otherwise necessary to permit consummation of the Business incurred Debt Financing in connection with the Transactions; provided that, the effectiveness of any Indebtedness of Trimble the foregoing ((A) and its Subsidiaries and required to (B)) shall be released pursuant subject to the terms hereof, including obtaining customary lien release letters and related termination filingsoccurrence of the Effective Time;
(v) no less than in connection with any Alternative Debt Financing, providing customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders (including customary 10b-5 and material non-public information representations);
(vi) cooperating with customary and reasonable due diligence requests in connection with the Debt Financing;
(vii) solely in connection with any Alternative Debt Financing, to the extent appropriate, using reasonable best efforts to ensure any syndication and marketing efforts benefit from the Company’s existing lending and investment banking relationships;
(viii) providing at least four (4) Business Days prior to the expected Closing Date, furnishing to AGCO and the Financing Sources Date all documentation and other information about the Company and each of its Subsidiaries as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to Source for the Closing Date about the Company or Trimble and its Subsidiaries Debt Financing that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsregulations including the USA PATRIOT Act and the requirements of 31 C.F.R. §1010.230, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing Parent from the auditors with respect Company at least seven (7) Business Days prior to the Business expected Closing Date;
(ix) upon the request of Parent, publicly disclosing or permitting Parent to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO publicly disclose, in connection with respect any bona fide marketing activities related to any Alternative Debt Financing, any non-public business or financial information (including related to the historical Business information included Company and/or any of its Subsidiaries that Parent reasonably determines, upon the advice of counsel, to be material to an investment decision in the pro forma financial information) of the Business included connection with such Alternative Debt Financing and is legally required to be disclosed in any offering documents relating related to any Alternative Debt Financing; provided that no such disclosure shall occur without the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements written consent of the Business are includedCompany, which consent cannot be unreasonably withheld;
(x) [reserved];
(xi) providing Parent prompt notice of any Required Information ceasing to be Compliant; and
(xii) using reasonable efforts to permit the prospective lenders involved in the Debt Financing to evaluate the Company’s and its Subsidiaries’ current assets, if requiredcash management and accounting systems, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures relating thereto for the purpose of establishing collateral arrangements to the extent customary and applicable auditing standards; providedreasonable and otherwise reasonably facilitating the grant of a security interest in collateral and providing related lender protections.
(d) Notwithstanding anything to the contrary contained in this Agreement (including this Section 7.1), that neither Trimble nor (i) nothing herein shall require any such cooperation to the extent it would (A) require the Company or any of its Representatives, as applicable, to waive or amend any terms of this Agreement, (B) unreasonably disrupt the conduct of the ongoing business or operations of the Company or any of its Subsidiaries shall or Affiliates, as determined by the Company in good faith, (AC) require the Company to agree to pay any fees, reimburse any expenses or otherwise incur any actual or potential liability or give any indemnities that are not contingent upon the Effective Time or for which it is not promptly reimbursed or simultaneously indemnified, (D) require the Company to take any action that would reasonably be required expected to conflict with, or result in any violation or breach of, or default (with or without notice or lapse of time, or both) under the certificate of incorporation or bylaws of the Company, any applicable Laws, or any Contract, (E) require the Company or its Representatives to prepare any projections or other “forward looking” or similar statements, (F) result in any officer or director of the Company or any of its Representatives incurring actual or potential personal liability with respect to any matters relating to the Debt Financing; (G) require any financial (or other) information that (1) is not produced in the ordinary course of business and (2) cannot be produced or provided without unreasonable cost or expense, (H) provide access to or disclose information that the Company determines in good faith (after consultation with counsel) would jeopardize any attorney client privilege of, or conflict with any confidentiality requirements applicable to, the Company or any of its Subsidiaries, (I) cause any representation or warranty in this Agreement to be breached, cause any condition to the Closing set forth in Annex I to fail to be satisfied or otherwise cause any breach of this Agreement, or (J) require the Company to deliver or cause the delivery of any legal opinions in connection with the Debt Financing; and (ii) no action, liability or obligation (including any obligation to pay any commitment or other similar fee, (Bfees or reimburse any expenses) have of the Company or any liability or obligation of its Representatives under any loan agreement certificate, agreement, arrangement, document or instrument relating to the Debt Financing (other than a customary authorization letter) shall be effective until (or that is not contingent upon) the Effective Time. Parent and related documents, unless its Subsidiaries and until the Closing occurs (except Financing Sources may reasonably use logos of the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability Company in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Debt Financing; provided, however, that such trademarks and logos are used solely in conformance with the Company’s trademark usage guidelines and in a manner that is not intended to nor or reasonably likely to harm or disparage Trimble the Company or any of its Subsidiaries or the reputationreputation or goodwill of the Company or any of its Subsidiaries.
(e) Upon the request of the Company and Parent will keep the Company reasonably informed on a reasonably current basis of the status of Parent’s efforts to obtain the Debt Financing. Without limiting the generality of the foregoing, Parent shall give the Company prompt notice of the occurrence of any material breach of or default under the Loan Agreement Amendment or the Amended Loan Agreement (as defined in the Loan Agreement Amendment) by any party thereto of which Parent becomes aware.
(f) In the event that this Agreement is terminated in accordance with Section 9.1 (other than a termination by the Company pursuant to Section 9.1(c)), Parent shall, promptly upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket expenses incurred by the Company or its Representatives in connection with the performance of their respective obligations under this Section 7.1 (to the extent not prev
Appears in 2 contracts
Sources: Merger Agreement (scPharmaceuticals Inc.), Merger Agreement (Mannkind Corp)
Financing. (a) Subject Each of Parent and Sub shall use, and cause its Affiliates to the terms and conditions of this Agreementuse, AGCO shall use its reasonable best efforts (unless, with respect to any action, another standard for performance is expressly provided for herein) 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 Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions (including the flex provisions) set forth in the Financing Agreements and any related Fee Letter (taking into account the anticipated timing of the Marketing Period), including using reasonable best efforts to seek to enforce (including through litigation) its rights under the Debt Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted event of a material breach thereof by the Financing Termssources thereunder, and AGCO shall not permit any amendment or modification to be made to, or consent to any waiver of any provision or remedy under, the Commitment Letter Financing Agreements or the any related Fee Letter (or following entry into definitive documents relating to the Committed FinancingLetter, such definitive documents) if such amendment, modification or waiver (Ai) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing changing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents Financing Agreements, (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (Bii) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financingreceipt of the Financing in a manner adverse to Parent or the Company, (iii) decreases the aggregate Equity Financing as set forth in the Equity Financing Commitment delivered on the date hereof, (iv) amends or modifies any other terms in a manner that would, in the case of this subclause (B), would reasonably be expected to (x) delay or prevent or materially delay the Offer Closing or the availability of the Committed Financing on the Merger Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) make the timely funding of the Financing or satisfaction of the conditions to obtaining the Financing less likely to occur or (v) adversely impact the ability of AGCO Parent or Sub to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacementAgreements. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references toclarification, the Financing, foregoing shall not prohibit Parent from amending the Debt Commitment Letter and any Committed Financing Source, any Financing Source, references related Fee Letter to “Committed add additional lender(s) (and Affiliates of such additional lender(s)) as a party thereto. Any reference in this Agreement to (A) ‘‘Financing” shall include the financing contemplated by the Commitment Letter (Financing Agreements as amended or definitive financing documents related thereto) as permitted by modified in compliance with this Section 7.15(a7.08(a), and (B) to be amended, modified “Financing Agreements” or replaced and references to “Debt Commitment Letter” shall include such document documents as permitted by amended or modified in compliance with this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing7.08(a). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputation[...]
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement
Financing. (a) Borrower, Parent and Merger Sub shall (i) use commercially reasonable best efforts to (A) satisfy or cause to be satisfied on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Borrower, Parent and Merger Sub, as applicable, in the Commitment Letters and such definitive agreements to be entered into pursuant to the Commitment Letters that are within the control of Borrower, Parent and Merger Sub, (B) negotiate and enter into definitive agreements, or cause to be negotiated and entered into definitive agreements, with respect thereto consistent with the terms and conditions contained in the Commitment Letters or on other terms that are not materially less favorable, in the aggregate, to the Borrower, Parent and Merger Sub, as applicable, than the terms and conditions contemplated by the Commitment Letters, and (C) if all of the conditions set forth in Article 6 have been satisfied or, to the extent permitted hereunder, waived (other than those that by their nature can only be satisfied on the Closing Date, but subject to the satisfaction of such conditions on the Closing Date or waiver by the party entitled to waive such conditions), otherwise diligently and in good faith enforce its rights or use commercially reasonable best efforts to cause the Borrower to enforce its rights under the Commitment Letters, as applicable, including if necessary by filing one or more Proceedings against any or all parties to the Commitment Letters to fully enforce the obligations of such party or parties therein, (ii) maintain, or use their respective commercially reasonable best efforts to cause the Borrower to, as applicable, maintain in effect the Commitment Letters until the consummation of the Transactions, and (iii) comply with, or use their respective reasonable best efforts to cause the Borrower to comply with their respective obligations under the Commitment Letters. At the request of the Company, each of Borrower, Parent and Merger Sub shall provide the Company with such information and documentation as shall be reasonably requested by the Company to allow the Company to monitor the progress of such financing activities.
(b) Subject to the terms and conditions of this Agreementthe Debt Amendment and the Subordinated Note, AGCO Borrower, Parent and Merger Sub shall use its reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth in the Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior to the Closing Date, as applicable, including using its their commercially reasonable best efforts to cause the lenders and Financing Sources to provide the other persons committing to fund the Committed Debt Financing on the Closing Date (Date. In the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or event any portion of the Committed Financing on the terms and conditions, debt financing contemplated in the manner Debt Amendment or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise Subordinated Note becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter Debt Amendment or Subordinated Note, as applicable, Borrower, Parent and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO Merger Sub shall use its their commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary or advisable to arrange and to obtain in replacement thereof alternative debt financing for all or such portion of such debt financing (each, an “Alternative Alternate Debt Financing”) from alternative sources in an amount at least equal sufficient, when taken together with any available portion of the Debt Financing, any cash on hand and any Equity Financing to consummate the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with Transactions and on terms and conditions that are not materially less favorable favorable, and with no material new, additional or expanded conditions, to AGCO (or its Subsidiaries)Borrower, as determined Parent and Merger Sub than those in the reasonable judgment Debt Amendment as in effect on the date of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and this Agreement as promptly as reasonably practicable following the occurrence of such event. For purposes of this Agreement, references to “Debt Financing” shall include the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in Alternate Debt Financing as permitted by this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter 6.15 and the Fee Letter (assuming the application of the “market flexDebt Amendment” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any include such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior documents related to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested Alternate Debt Financing as permitted by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputation6.15.
Appears in 2 contracts
Sources: Merger Agreement (AdTheorent Holding Company, Inc.), Merger Agreement (AdTheorent Holding Company, Inc.)
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO shall use its reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth in the Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO Purchaser shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, or replace, the Debt Financing Commitment Letter or and/or the Fee Letter (or following entry into definitive documents relating to Escrow Indenture Documents, without the Committed Financingprior written consent of Seller, such definitive documents) if such amendment, modification modification, waiver or waiver replacement (i) (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Debt Financing (including by increasing changing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from to an amount that is below an amount that, assuming the accuracy of the representations and warranties contained in Article III and Article IV, is sufficient to complete the transactions contemplated by this Amended Agreement and pay all fees and amounts in connection with this Amended Agreement, the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A))Ancillary Agreements and the transactions contemplated hereby and thereby, or (B) imposes new or additional conditions or otherwise adversely expands, amends or modifies any of the conditions to the Committed receipt of the Debt Financing, in a manner that wouldor (C) otherwise expand, amend or modify any provision of the Debt Financing Commitment and/or the Escrow Indenture Documents, in the case of this subclause clause (BC), in a manner that would reasonably be expected to (xI) prevent or materially delay or prevent the Closing Closing, (II) adversely impact in any material respect the ability of Purchaser to enforce its rights under the Debt Financing Commitment or the definitive agreements with respect thereto and/or the Escrow Indenture Documents or (III) materially delay or impair the availability of the Committed Debt Financing on at the Closing Date taking into account or materially impede the expected timing satisfaction of the conditions to obtaining the Debt Financing at the Closing Date, taking into account the expected timing (including release of the Marketing Periodproceeds of the Escrow Notes from escrow) (clauses (A), (B) and (C), collectively, the “Restricted Financing Commitment Amendments”) (provided that, subject to the limitations set forth in this Section 6.12, Purchaser may amend the Debt Financing Commitment (1) to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Financing Commitment as of the date hereof, but only if the addition of such additional parties, individually or in the aggregate, would not result in the occurrence of a Restricted Financing Commitment Amendment, or (y2) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect connection with an alternative financing as contemplated by clause (the terms of any such amendment, modification or waiver not in violation of these clauses (Ab) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend 6.12) or (ii) results in the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies early termination of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Debt Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedCommitment.
(b) AGCO Purchaser shall use its reasonable best efforts (taking into account to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the anticipated timing proceeds of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Debt Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained described in the Debt Financing Commitment Letter (including and the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior to the Closing Date, as applicableEscrow Indenture Documents, including using its reasonable best efforts to cause (i) maintain in effect the lenders Debt Financing Commitment (including by complying with so-called “flex” provisions) until the funding of the Debt Financing at or prior to the Closing, (ii) satisfy on a timely basis (or obtain a waiver of) all conditions to obtaining the Debt Financing at the Closing as set forth in the Debt Financing Commitment and the Escrow Indenture Documents (other persons committing than those that are solely within the control of Seller and its Subsidiaries) and comply with all of its material obligations thereunder, (iii) negotiate, execute and deliver definitive agreements (which with respect to fund any bridge facility documentation shall not be required until reasonably necessary in connection with the Committed funding of the Debt Financing) with respect to such Debt Financing on the Closing Date terms and conditions (including the “Committed flex” provisions) contemplated by the Debt Financing Sources”Commitment and the Escrow Indenture Documents (and provide executed copies of such definitive agreements to Seller) or on other terms in the aggregate materially no less favorable to Purchaser or the interests of Seller, as to conditionality, than the terms and conditions in the Debt Financing Commitment and the Escrow Indenture Documents, as applicable (provided that in no event shall any such definitive agreement contain terms (other than those included in the Debt Financing Commitment and the Escrow Indenture Documents) that would constitute Restricted Financing Commitment Amendments), (iv) fully pay any and all commitment fees or other fees required by the Debt Financing Commitment, and (Dv) upon satisfaction of the conditions set forth in the Debt Financing Commitment and the Escrow Indenture Documents, consummate the Debt Financing at or prior to the Closing and enforce its rights under the Debt Financing Commitment Letter and the Escrow Indenture Documents. In the event any definitive agreements portion of the Debt Financing becomes unavailable on the terms and conditions (including any “flex” provisions) contemplated in the Debt Financing Commitment and the Escrow Indenture Documents, Purchaser shall promptly notify Seller and shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain alternative financing from alternative sources for such portion on terms and conditions (x) not materially less favorable to Purchaser than the Debt Financing Commitment and the Escrow Indenture Documents, (y) with respect thereto. Trimble acknowledges conditions to the funding of the Debt Financing not materially less favorable to the interests of Seller than those included in the Debt Financing Commitment and agrees that AGCO shall not be required the Escrow Indenture Documents, and (z) in an amount sufficient to consummate the Available Financing before transactions contemplated hereby, including the final day payment of the Marketing Period.
Estimated Purchase Price, the amount to be paid pursuant to Section 2.04 and all related fees and expenses promptly following the occurrence of such event, and in any event prior to or on the Closing Date, and, if obtained, Purchaser shall promptly deliver to Seller true and complete copies of a new financing commitment pursuant to which any such alternative source shall have committed to provide Purchaser with any portion of the Debt Financing. Purchaser shall keep Seller reasonably informed and in reasonable detail with respect to all material developments concerning the Debt Financing, including advising and updating Seller, in a reasonable level of detail, with respect to status and proposed closing date of the Debt Financing. Without limiting the generality of the foregoing, Purchaser shall promptly notify Seller in writing of (c1) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Debt Financing Commitment Letter or definitive agreements relating to the Committed Financing Escrow Indenture Documents of which AGCO Purchaser has Knowledge if such become aware, which breach or default would if not cured could reasonably be expected to result in a material delay of, or in any way limit, the availability unavailability of the Committed FinancingDebt Financing or any termination of any of the Debt Financing Commitment or the Escrow Indenture Documents, (y2) of the receipt by Purchaser or any of its Affiliates or their respective employees, agents or representatives of any written notice or other communication, in each case communication from any Committed Financing Source Person with respect to any (I) actual or potential material breach, material default, termination or repudiation by any party to any Debt Financing Commitment, the Commitment Letter Escrow Indenture Documents or any definitive agreements relating agreement related thereto or (II) material dispute or disagreement between or among any parties to any Debt Financing Commitment, the Committed Escrow Indenture Documents or any definitive agreement related thereto, in each case which could reasonably be expected to result in the unavailability of the Debt Financing or any termination of any provisions of the Debt Financing Commitment Letter or definitive agreements relating to the Committed Financing if such breachEscrow Indenture Documents, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z3) if at any time for any reason AGCO Purchaser believes in good faith that (I) there is (or there is reasonably likely to be) a material dispute or disagreement between or among any parties to the Debt Financing Commitment, the Escrow Indenture Documents or any definitive agreement related thereto which could reasonably be expected to result in the unavailability of the Debt Financing or any termination of any of the Debt Financing Commitment or the Escrow Indenture Documents or (II) there is a material possibility that it will not be able to obtain all or any portion of the Committed financing contemplated in the Debt Financing Commitment and the Escrow Indenture Documents on the terms and conditionsterms, in the manner or from the Committed Financing Sources sources contemplated by the Commitment Letter Debt Financing Commitment, the Escrow Indenture Documents or the definitive agreements relating related thereto. References in this Amended Agreement to “Debt Financing” shall include the financing contemplated by the Debt Financing Commitment and the Escrow Indenture Documents as permitted by this Section 6.12 to be amended, modified or replaced (including, replacement with alternative financing and alternative financing commitments pursuant to this Section 6.12) and references to “Debt Financing Commitment” shall include such documents as permitted by this Section 6.12 to be amended, modified or replaced (including replacement with alternative financing commitments pursuant to this Section 6.12), in each case from and after such amendment, modification or replacement.
(c) Unless otherwise provided below, prior to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written requestClosing, AGCO Seller and its Subsidiaries shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x)Purchaser, (y) or (z) of the immediately preceding sentence; provided that AGCO and shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its use their reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause cause their respective directors, officers, employees, consultants, agents, financial advisors, attorneys, accountants and other representatives (x)collectively, (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative FinancingRepresentatives”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubtto, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree toeach case, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expensePurchaser, all cooperation that is reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter Purchaser in connection with the Available Financing. Without limitation Debt Financing or any debt securities being issued in conjunction with or in lieu of all or a portion of the generality of the foregoingDebt Financing, such including using reasonable best efforts shall include:
in connection with: (i) upon reasonable noticeas promptly as reasonably practical, participation by management furnishing Purchaser with (A) the Required Information and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertiseB) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders such other pertinent information (including financial information and other customary syndication activities and reasonably cooperating with information to the marketing efforts extent necessary in the preparation of AGCO and an information package regarding the Financing SourcesBusiness, in each case, in connection with to the Available Financingextent reasonably available to Seller and its Subsidiaries without undue burden and expense to Seller and its Subsidiaries, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company Transferred Entities and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance Business as may be reasonably requested by AGCO Purchaser in writing, and in any case, solely to the extent necessary to permit Purchaser to prepare a bank information memoranda or similar document, to consummate the Debt Financing, (ii) assisting with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder)Debt Financing, including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) before the Closing and, to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company necessary to allow Purchaser or any of its Subsidiaries under any such document shall Affiliates to consummate the Debt Financing, using reasonable best efforts to obtain instruments relating to guarantees and other matters ancillary to the Debt Financing as may be effective until the Closing other than in the case of the authorization reasonably requested by Purchaser as necessary and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates customary in connection with the Available Debt Financing, (iv) using reasonable best efforts to assist Purchaser in connection with its preparation of pro forma financial information to the extent required for the Debt Financing unless AGCO shall have confirmed that such directorsand to be included in any syndication documents, officers (v) executing and managers are to remain delivering as directors, officers and managers of the Company Closing, on behalf of the Transferred Entities and its Subsidiaries on the Business, any necessary pledge and after security documents and otherwise reasonably facilitating the granting of a security interest (and perfection thereof) in collateral, guarantees, mortgages, other definitive financing documents or other certificates or documents as may reasonably be requested by Purchaser; provided that any obligations contained in all such agreements and documents shall be subject to the occurrence of the Closing and such resolutionseffective no earlier than the Closing, financing documents(vi) cooperating reasonably with the Financing Sources’ due diligence, agreements to the extent customary and certificates are contingent upon reasonable and participating in due diligence sessions, (vii) obtaining customary payoff letters, Lien terminations and instruments of discharge necessary to be delivered at the Closing to allow for the payoff, discharge or termination in full on the Closing Date of any debt necessary to evidence the release of liens or guarantees, (viii) taking all corporate actions, subject to the occurrence ofof the Closing, reasonably requested by Purchaser that are necessary or only effective as of, customary to permit the Closing consummation of the Debt Financing and (Bix) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources providing all documentation and other information as is reasonably requested in writing by about the Financing Sources at least six (6) Business Days prior and the Transferred Entities to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is extent required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsregulations including the USA PATRIOT Act, in each case, to the extent reasonably requested at least ten (10) Business Days prior to the anticipated Closing Date; provided, however, that Seller, its Subsidiaries and their respective Representatives shall not be required to authorize, execute, deliver or perform under any agreement with respect to the Debt Financing that (A) unreasonably interferes with the ongoing business of Seller or its Subsidiaries; (B) causes any covenant, representation or warranty in this Amended Agreement to be breached in a manner that would cause any closing condition to Purchaser’s obligations to fail to be satisfied or otherwise causes the breach of this Amended Agreement (other than those conditions that by their terms are to be satisfied at the Closing); (C) requires Seller or its Subsidiaries to incur any liability (including, without limitation, any commitment fees and expense reimbursement) in connection with the PATRIOT ActDebt Financing, includingother than solely in the case of the Transferred Entities, if any liability that is contingent upon the Company qualifies as a “legal entity customer” under occurrence of the Beneficial Ownership RegulationClosing or that would be effective only on and after the Closing; (D) requires Seller or its Subsidiaries or their respective directors, a Beneficial Ownership Certification; and
(vi) officers, managers or employees to the extent reasonably requested by AGCOexecute, directing the auditors deliver or enter into, or perform any agreement, document, certificate or instrument with respect to the Business Debt Financing or adopt resolutions approving the agreements, documents, instruments and other actions pursuant to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements Debt Financing is obtained; (E) requires Seller or its Subsidiaries to give any legal opinion or other opinion of the Business are includedcounsel; or (F) requires Seller or its Subsidiaries to take any action that is prohibited or restricted by, andor will conflict with or violate, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble its organizational documents. Neither Seller nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have fees or make any liability other out-of-pocket payment or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability or obligation or provide or agree to provide any indemnity in connection with the Available Debt Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of the foregoing in connection with the Debt Financing in connection with assisting Purchaser in arranging the Debt Financing or as a result of any information provided by Seller, its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble Subsidiaries or any of its Subsidiaries is a party to their respective Affiliates or Representatives in connection with the extent not entered into in contemplation Debt Financing. Seller, on behalf of the provisions in this Section 7.15(d). Trimble Business, hereby consents to the reasonable use of its and its Subsidiariesthe Business’ trademarks and logos in connection with the Available FinancingDebt Financing contemplated by the Debt Financing Commitment; provided, however, that such trademarks and logos are used solely in a manner that is not intended to to, nor reasonably likely to to, harm or disparage Trimble the Business, Seller or its Subsidiaries. Purchaser agrees that any information regarding Seller or any of its Subsidiaries or Affiliates contained in any presentations, offering documents, teasers or other materials in connection with, or related to, the reputationDebt Financing shall be subject to the prior review of Seller, which review shall be completed promptly after receipt thereof.
(d) Purchaser shall indemnify and hold harmless Seller, its Affiliates, their respective Subsidiaries and the Representatives of each of the foregoing (the “Financing Indemnitees”) from and against any and all liabilities, losses, damages, claims, costs, expenses, awards, judgments, fines, interest, and penalties suffered or incurred by them in connection with the arrangement of the Debt Financing (including any replacement or alternative financing) and the performance of their respective obligations under this Section 6.12 or any information utilized in connection therewith (other than directly arising from a material misstatement in, or material omission in, the information, taken as a whole, provided by or on behalf of the
Appears in 2 contracts
Sources: Acquisition Agreement (SB/RH Holdings, LLC), Acquisition Agreement (Energizer Holdings, Inc.)
Financing. (a) Subject Tenants agree that, from time to time, they may arrange for the financing or refinancing of the Property on such terms as the Tenants may determine by unanimous vote. In accordance with such financing, the Tenants shall have the right to mortgage or otherwise encumber the Property for the acquisition and operation of the rental property, and each of the Tenants hereby agree, to the terms and conditions of this Agreement, AGCO shall use its reasonable best efforts to obtain extent required by the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth in the Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)applicable lender(s), to enter into any deed of trust, mortgage or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions other such lien to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms secure payment of any such amendmentfinancing and to fully cooperate by providing such information as the lender may require or request. Furthermore, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance connection with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendmentfinancing or refinancing, modification each Tenant agrees to execute and deliver estoppel certificates, subordination and non-disturbance agreements, and/or such other incidental loan documents other than deeds of trust or replacement. For purposes mortgages, as may be required by a lender as a part of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedfinancing.
(b) AGCO shall use If the Property is sold, any indebtedness secured by the Property in its reasonable best efforts (taking into account the anticipated timing of the Closing Date entirety must be satisfied and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject remaining sales proceeds distributed to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, Tenants in the case of each of clauses (x), (y) and (z), proportion to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained rations described in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing PeriodParagraph 2 herein.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source The lender with respect to any actual debt that encumbers the Property or potential material breach, material default, termination or repudiation by with respect to any party debt incurred to acquire an undivided interest in the Property may not be a person related to the Commitment Letter Company or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative FinancingTenant.
(d) Prior Unless otherwise agreed upon by the Tenants, each Tenant shall pay and be liable for one-half (50.0%) of all monthly costs including, but not limited to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇ ▇▇▇▇▇▇▇’▇ Subsidiaries , insurance and mortgage payments for the Property as well as of any other payment(s) which may become due to use their respective reasonable best efforts any lender on the Property (including trade debt) pursuant to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter any loan guaranty or surety agreement made in connection with the Available FinancingProperty, even if such Tenant did not execute such mortgage, guaranty or surety agreement. Without limitation Each Tenant shall indemnify and hold harmless the others, up to a maximum of one-half (50.0%) per Tenant, for any claim made against any other Tenant in excess of the generality of the foregoing, such reasonable best efforts shall include:
other Tenant’s one-half (i50.0%) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries interest in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputationProperty.
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Financing. (a) Subject to the terms and conditions of this Agreement, AGCO Sequential shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth described in the Commitment Letter Financing Commitments (including any the exercise of “market flex” provisions in the Fee Letterrelated fee letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Termspromptly as practicable following the date hereof (taking into account the expected timing of the Closing). Sequential shall comply with its obligations, and AGCO shall not permit any amendment or modification enforce its rights, under the Financing Commitments in a timely and diligent manner. In the event that all conditions to be made tothe Financing Commitments set forth therein have been, or any waiver of any provision underupon funding will be, satisfied, Sequential shall use its reasonable best efforts to cause the Commitment Letter lenders party thereto and the other Persons providing such Financing to comply with their obligations under the Financing Commitments and the definitive financing agreements entered into in connection with the Financing and to fund the Financing required to consummate the transactions contemplated by this Agreement and to pay related fees, costs and expenses on or the Fee Letter (or following entry into definitive documents relating prior to the Committed FinancingClosing Date. Sequential will keep MSLO reasonably informed of the status of its efforts to arrange the Financing and to satisfy the conditions thereof, such definitive documents) if such amendment, modification or waiver including (A) promptly notifying MSLO of (1) any material breach or default by any party to the Financing Commitments or any definitive financing agreement entered into in connection with the Financing, if such breach or default would reasonably be expected to affect the timely availability of, or the amount of, the Financing and (2) the receipt by any of Sequential or any of its Representatives of any written notice or other written communication from any lender committing or providing the Financing or other Person with respect to (x) any actual, threatened or alleged breach, default, termination or repudiation by any party to the Financing Commitments or any definitive financing agreement entered into in connection with the Financing or any provision thereof (including any proposal by any lender or other Person to withdraw or terminate or make any material change in the terms of the Financing Commitment Letter that would reasonably be expected to affect the timely availability of, or the Fee Letter amount of, the Financing) or (y) any material dispute or disagreement between or among any parties to any Financing Commitment or any definitive financing agreement entered into in connection with the Financing, if such definitive documentsdispute or disagreement would reasonably be expected to affect the timely availability of, as applicableor amount of, reduces the Financing and (B) upon MSLO’s reasonable request, advising and updating MSLO, in a reasonable level of detail, with respect to status of the Financing. Sequential may replace or amend all or any portion of the Financing Commitments; provided, that such replacement or amendment would not (i) reduce the aggregate cash amount of proceeds of the Committed Financing (including by increasing changing the amount of fees to be paid or original issue discount unless of the Committed Financing is increased by a corresponding amount or (except as set forth in any “market flex” provisions existing on the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated date hereof in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(Arelated fee letter)), or (Bii) imposes impose new or additional conditions conditions, or otherwise expandsexpand any conditions, amends to the receipt of the Financing from those set forth in the Financing Commitments on the date hereof, (iii) reasonably be expected to prevent, or modifies any materially delay or impair, the availability of the full amount of the Financing or make the funding of the Financing or the satisfaction of the conditions to obtaining the Committed FinancingFinancing less likely to occur, in a manner that would, in (iv) adversely affect the case ability of this subclause (B), reasonably be expected Sequential to (x) prevent enforce its rights against any lender or materially delay any other Person providing or committing to provide the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (yv) adversely impact the ability of AGCO Sequential to enforce its rights against cause TopCo to timely consummate the MSLO Merger and the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacementtransactions contemplated hereby. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing SourceAgreement, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (Financing Commitments as replaced, amended or definitive financing documents related thereto) modified as permitted by this Section 7.15(a) hereby, including, if applicable, pursuant to be amendedan alternative financing that is in compliance herewith, modified or replaced and references to “Commitment LetterFinancing Commitments” shall include such document documents as replaced, amended or modified as permitted by this Section 7.15(a) hereby, including, if applicable, pursuant to be amendedan alternative financing in compliance herewith. Without limiting the generality of the foregoing and subject to replacements or amendments permitted hereby, modified or replaced.
(b) AGCO Sequential shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (Ai) maintain in effect the Commitment Letter in accordance with Financing Commitments until the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consenttransactions contemplated by this Agreement are consummated, (xii) enter into other debt financing arrangements satisfy on a timely basis (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing PeriodClosing) all conditions and covenants applicable to Sequential in the Financing Commitments and any definitive agreements entered into in connection therewith at or prior to Closing and otherwise comply with its obligations thereunder, (iii) negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter thereto on the terms and conditions contained in consistent with those contemplated by the Commitment Letter Financing Commitments and (including the “flex” provisions included in the Fee Letteriv) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior to the Closing DateClosing. If, as applicable, including using its notwithstanding the use of reasonable best efforts by Sequential to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce satisfy its rights obligations under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay ofthis Section 5.7, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on or the terms and conditions, in the manner Financing Commitments (or from the Committed Financing Sources contemplated by the Commitment Letter any definitive financing agreement relating thereto) expire or definitive agreements relating are terminated or otherwise become unavailable prior to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO in whole or in part, for whatever reason, Sequential shall (i) promptly notify MSLO of such expiration, termination or unavailability and the reason therefor and (ii) use its reasonable best efforts to promptly arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources sources, in an amount at least equal sufficient to consummate the unavailable portion thereoftransactions contemplated by this Agreement and to pay related fees, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms costs and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and expenses as promptly as reasonably practicable following the occurrence of such eventevent and which do not include any conditions to the consummation of such alternative financing that are more onerous than the conditions set forth in the Financing Commitments. True, complete and correct copies of each commitment letter and other agreement relating to the alternative financing will be promptly provided to MSLO. Sequential acknowledges and agrees that the obtaining of the Financing is not a condition to the Closing. For the avoidance of doubt, in no event shall if the reasonable best efforts obligation Financing has not been obtained, Sequential will continue to be obligated, subject to the fulfillment or waiver of the conditions set forth in this Section 7.15 be construed so as Sections 7.1 and 7.3, to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in complete the reasonable judgment of AGCO, than Mergers and consummate the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financingtransactions contemplated hereby.
(db) Prior to the Closing, Trimble MSLO shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCOSequential, at AGCOSequential’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter Sequential in connection with the Available Financing. Without limitation of the generality of the foregoing, such including by using reasonable best efforts shall include:
in (i) upon reasonable noticefurnishing Sequential and its lenders any information and financial statements reasonably requested by such Persons as is customarily required in connection with the execution of debt financings similar to the Financing (provided, participation by that MSLO will have no obligation to prepare pro forma financial information or post-closing financial information), (ii) participating, but only together with the executive officers of Sequential and other members of senior management and Representatives representatives of TrimbleSequential, Company and their respective Subsidiaries (with appropriate seniority at a time and expertise) place acceptable to the executive officers of MSLO, in a reasonable number of meetingsmeetings (including customary one-on-one meetings with the parties acting as lead arrangers or agents for, and prospective lenders and purchasers of, the Financing and the executive officers of MSLO and other members of senior management and representatives of MSLO), presentations, road shows, presentations, conference calls, due diligence sessions, sessions and sessions with rating agencies in connection with the Financing, as reasonably requested by Sequential, (iii) assisting Sequential and potential its lenders in the preparation of customary bank information memoranda, rating agency presentations and other customary syndication activities and reasonably lender presentations relating to the Financing, (iv) cooperating with the marketing efforts of AGCO Sequential and its lenders for all or any portion of the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(iiv) delivery to AGCO of the Required Information and other financial and other pertinent providing information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of MSLO and its Subsidiaries that will serve as collateral for the Business incurred Financing as is reasonably requested by Sequential and, subject to Section 6.2, providing reasonable access to Sequential and its lenders, during normal working hours and upon reasonable advance notice, to allow them to conduct audit examinations and appraisals with respect to such collateral, (vi) seeking to cause its auditors to provide assistance to Sequential consistent with their customary practice (including to provide and consent to the use of their audit reports relating to the consolidated financial statements of MSLO and its Subsidiaries), in each case on customary terms and consistent with their customary practice in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant financings similar to the terms hereofFinancing, including obtaining customary lien release letters (vii) so long as such documents and related termination filings;
(v) no less than four (4) other information are reasonably requested by Sequential in writing at least ten Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources providing all documentation and other information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities with respect to MSLO and its Subsidiaries under applicable “know your customer” and anti-money laundering rules and regulations, includingincluding the USA PATRIOT Act of 2001, without limitationas amended, and (viii) seeking to arrange for customary payoff letters, lien terminations and instruments of discharge to be delivered at Closing providing for the PATRIOT Actpayoff, includingdischarge and termination on the Closing Date of all indebtedness contemplated by the Financing Commitment to be paid off, if discharged and terminated at Closing; provided, however, that, irrespective of the Company qualifies as a “legal entity customer” under above, (A) such requested cooperation shall not unreasonably interfere with the Beneficial Ownership Regulationbusiness or the ongoing operations of MSLO and its Subsidiaries, a Beneficial Ownership Certification; and
(viB) nothing in this Section 5.7(b) shall require cooperation to the extent that it would (x) cause any condition to the Closing set forth in Sections 7.1 and 7.3 to not be satisfied or otherwise cause any breach of this Agreement or (y) reasonably requested by AGCObe expected to conflict with or violate MSLO’s or any its Subsidiaries’ organizational documents or any applicable Law, directing (C) prior to the auditors Closing, none of the directors or managers of MSLO or any of its Subsidiaries, acting in such capacity, shall be required to execute, deliver or enter into or perform any agreement, certificate, document or instrument with respect to the Business Financing or adopt any resolutions approving the agreements, documents and instruments pursuant to provide customary comfort letters which the Financing is obtained, and (including “negative assurance” comfort and change period comfortD) reasonably requested by AGCO none of MSLO’s or its Subsidiaries’ officers or employees shall be required to execute, deliver or enter into, or perform any agreement, document or instrument with respect to financial information (including the historical Business information included in Financing that is not contingent upon the pro forma financial information) of the Business included in any offering documents relating Closing or that would be effective prior to the Committed Financing that consists Effective Time.
(c) Notwithstanding Section 5.7(b) above, none of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor MSLO or any of its Subsidiaries shall (A) be required to bear any cost or expense or to pay any commitment or other similar fee, (B) have fee or make any other payment in connection or incur or assume any other liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (prior to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result Effective Time except in the contravention case of expenses that are reimbursed as provided in Section 8.2(b). Sequential shall, promptly upon request, reimburse MSLO for all reasonable and documented out-of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble -pocket costs and expenses (including reasonable attorneys’ fees) incurred by MSLO or any of its Subsidiaries is a party in connection with fulfilling its obligations pursuant to Section 5.7(b). Sequential shall indemnify and hold harmless MSLO and its Subsidiaries (and their respective Representatives) from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred in connection with the extent not entered into in contemplation arrangement of the provisions Financing and any information utilized in this Section 7.15(dconnection therewith (other than historical information relating to MSLO or its Subsidiaries provided by MSLO in writing specifically for use in the Financing offering documents). Trimble MSLO hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble MSLO or any of its Subsidiaries or the reputationreputation or goodwill of MSLO or any of its Subsidiaries and its or their marks.
Appears in 2 contracts
Sources: Merger Agreement (Martha Stewart Living Omnimedia Inc), Merger Agreement (Sequential Brands Group, Inc.)
Financing. (a) Subject Schedule 5.10 of the Purchaser Disclosure Letter sets forth a true and complete copy of the executed Debt Commitment Letter (including all exhibits, annexes and other attachments thereto, but excluding any fee letter) pursuant to which, and subject to the terms and conditions of which, the lender parties thereto have committed to lend the amounts set forth therein to the Purchaser and certain of its Affiliates for the purpose of Debt Financing.
(b) As of the date of this Agreement, AGCO shall use its reasonable best efforts to obtain the Committed Financing (taking into account Debt Commitment Letter is in full force and effect and has not been withdrawn or terminated, or otherwise amended, supplemented or modified in any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth respect. The Debt Commitment Letter, in the Commitment Letter (including any “flex” provisions in form so delivered, is a legal, valid and binding obligation of the Fee Letter) or on such other terms Purchaser and conditions that are acceptable its Affiliates party thereto and, to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver the knowledge of any provision underthe Purchaser, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financingother parties thereto, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than enforceable in accordance with its terms against each party thereto, subject to the Enforceability Exceptions. Except for fee letters relating to fees with respect to the Debt Financing (true and complete copies of which have been provided to the Parent Seller, with fee amounts, pricing caps and certain economic terms of the market flex (none of which would adversely affect the amount or unless concurrently replaced by commitments from other financing sources availability of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)the Debt Financing) redacted), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any as of the conditions date of this Agreement, there are no other agreements, side letters, or arrangements relating to the Committed Financing, in a manner Debt Financing that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or could affect the availability of the Committed Debt Financing on other than as expressly set forth in the Closing Date taking into account the expected timing Debt Commitment Letter. No event has occurred which, with or without notice, lapse of time or both, would constitute a failure of any condition of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Debt Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Debt Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes being unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) a default or breach on the part of the Purchaser under any term or condition of the Debt Commitment Letter, and the Purchaser has no reason to believe that it will be unable to satisfy, on a timely basis, any term or condition of closing to be satisfied by it contained in the Debt Commitment Letter. The Purchaser has fully paid any and all commitment fees or other fees required by the Debt Commitment Letter to take any action that will (x) conflict with be paid on or violate ▇▇▇▇▇▇▇’▇ or any before the date of its Subsidiaries’ Organizational Documents (this Agreement. The aggregate proceeds from the Debt Financing constitute all of the financing required for the Purchaser to consummate the transactions contemplated by this Agreement at Closing. The Debt Commitment Letter contains all of the conditions precedent to the extent any provision creating such conflict was not created in contemplation obligations of the Available Financing) parties thereunder to make the Debt Financing available to the Purchaser on the terms therein. As of the date of this Agreement, the Purchaser does not know of any facts or any Laws or (y) result in the contravention of, or circumstances that would could reasonably be expected to result in any of the conditions set forth in the Debt Commitment Letter not being satisfied. As of the date hereof, to the extent this Agreement must be in a violation form acceptable to any Lender, such Lender or breach ofLenders have approved this Agreement.
(c) The Purchaser’s obligations under this Agreement are not subject to any conditions regarding the Purchaser’s, its Affiliates’, or a default underany other Person’s (including, any Contract to which Trimble for the avoidance of doubt, the Sellers’ (or any of its Subsidiaries is a party their Affiliates’) ability to obtain financing for the extent not entered into in contemplation consummation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputationContemplated Transactions.
Appears in 2 contracts
Sources: Stock and Asset Purchase Agreement (Houghton Mifflin Harcourt Co), Stock and Asset Purchase Agreement (Scholastic Corp)
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO shall use its reasonable best efforts to obtain without the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on consent of the terms Company each of Parent and conditions set forth in the Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall Merger Sub will not permit any amendment amendment, replacement, supplement or modification to be made to, or any waiver of any provision underor remedy pursuant to, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating Letters prior to the Committed Financing, such definitive documents) Effective Time if such amendment, replacement, supplement, modification or waiver would, or would reasonably be expected to, (Ai) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces reduce the aggregate net amount of the Committed Financing (below the Required Financing Amount, including by increasing changing the amount of the fees to be paid or the original issue discount unless of the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discountDebt Financing; (ii) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes impose new or additional conditions or otherwise expandsexpand, amends amend or modifies modify any of the conditions to the Committed Financing, receipt of the Financing in a manner that would, in the case of this subclause (B), would reasonably be expected to (x1) prevent or materially delay or prevent the Closing of the Merger or (2) make the timely funding of the Financing, or the availability satisfaction of the Committed Financing on conditions to obtaining the Closing Date taking into account the expected timing of the Closing DateFinancing, taking into account the expected timing of the Marketing Period, less likely to occur in any material respect; or (yiii) adversely impact the ability of AGCO Parent or Merger Sub, as applicable, to enforce its rights against the other parties to the Commitment Letters or the definitive agreements with respect thereto; provided, that for the avoidance of doubt no consent from the Company shall be required for: (1) any amendment, replacement, supplement or modification of the Debt Commitment Letters that is limited to adding lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Debt Commitment Letter as of the date of this Agreement (including in replacement of a Lender), (2) the implementation of a Replacement Commitment Facility (as defined in the Debt Commitment Letter entered into as of the date hereof) so long as doing so would not reasonably be expected to result in any material respect of the outcomes described in the foregoing clauses (the terms i)-(iii), (3) implementation or exercise of any such “flex” provisions provided in the Fee Letter as in effect as of the date hereof, (4) Parent or any Subsidiary thereof to issue senior notes or other securities in lieu of all or a portion of the senior bridge facility referred to in the Debt Commitment Letter as of the date of this Agreement or the issuance of preferred equity at the Closing (in lieu of the senior notes or other debt securities in lieu of a portion of the senior bridge facility) to Permitted Preferred Purchasers, or (5) Permitted Co-Investors being added to the Equity Commitment Letter or delivering an equity commitment letter of their own in substantially similar form (except for amount) to the Equity Commitment Letter for a portion of the Equity Financing; and provided further, notwithstanding the foregoing or anything to the contrary in this Agreement, in no event in and of itself shall a Permitted Co-Investor becoming, or seeking to become (including in connection with seeking any Approval required to become in connection with the Merger), a direct or indirect equity investor in Parent or its affiliates after the date of this Agreement and effective prior to or as of the Closing be deemed to result in the outcomes described in the foregoing clauses (i)-(iii). Parent shall promptly furnish to the Company a copy of any amendment, replacement, supplement, modification or waiver not relating to the Commitment Letters. Any reference in violation of these clauses this Agreement to (Ax) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall will include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) Letters as permitted by this Section 7.15(a) to be amended, modified replaced, supplemented or replaced modified; and references to (y) “Equity Commitment Letter,” “Debt Commitment Letters” or “Commitment LetterLetters” shall will include such document documents as permitted by this Section 7.15(a) to be amended, modified amended or replacedmodified.
(b) AGCO shall Subject to the terms and conditions of this Agreement, each of Parent and Merger Sub will use its 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 and advisable to arrange, consummate and obtain the Financing on a timely basis (taking into account the anticipated timing of the Closing Date and the Marketing Period), but in any event no later than the Effective Time, on the terms and conditions (including, to the extent required, the full exercise of any “flex” provisions in any Fee Letter) described in the Commitment Letters, including, but not limited to, using its reasonable best efforts to (Ai) maintain in effect the Commitment Letter Letters in accordance with the terms and subject to the conditions thereof; (ii) negotiate, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) execute and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into deliver definitive agreements with respect to the Committed Debt Financing contemplated by the Debt Commitment Letter and related Fee Letter on a timely basis (taking account of the Marketing Period) on the terms and conditions contained in the Commitment Letter (including the any “flex” provisions included in the related Fee Letter) contemplated by the Debt Commitment Letter and related Fee Letter (or on such any other terms that are acceptable to AGCO Parent so long as such other terms and conditions constitute Permitted Financing TermsParent remains in compliance with Section 5.13(a), ); (Ciii) satisfy (or obtain the waiver of) on a timely basis all conditions to funding contained in the Debt Commitment Letter and related Fee Letter and such definitive agreements related thereto within the control of Parent or Merger Sub and in the Equity Commitment Letter on or prior to the Effective Time; (iv) in the event that all conditions contained in the Commitment Letters (other than, with respect thereto that are within its control andto the Debt Financing, subject to satisfaction the availability of all conditions to funding, the cash equity contribution) have been satisfied and Parent is required to consummate the Committed Closing pursuant to Sections 6.1 and 6.2 and the Marketing Period has been completed, consummate the Financing at or prior to the Closing Date, as applicableClosing, including using its reasonable best efforts to cause the lenders and the other persons committing Lenders to fund the Committed Debt Financing at the Closing; (v) comply with its obligations pursuant to the Commitment Letters on or prior to the Closing Date (the “Committed Financing Sources”) Effective Time; and (Dvi) enforce its rights under pursuant to the Commitment Letter Letters. Parent and any definitive agreements with respect thereto. Trimble acknowledges Merger Sub will fully pay, or cause to be fully paid, all commitment or other fees arising pursuant to the Commitment Letters as and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Periodwhen they become due.
(c) AGCO Parent shall (i) keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Financing; and (ii) provide the Company with copies of all definitive agreements and other documents related to the Debt Financing. Without limiting the generality of the foregoing, Parent and Merger Sub must give Trimble the Company prompt notice in writing (xbut in any event within two (2) Business Days after obtaining knowledge of the occurrence or discovery of) (A) of any breach (or threatened breach), default by (or any party event or circumstance that, with notice or lapse of time or both, could reasonably be expected to the Commitment Letter or definitive agreements relating give rise to the Committed Financing of which AGCO has Knowledge if such any breach or default would result in a material delay ofdefault), or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material defaultcancellation, termination or repudiation by any party to the Commitment Letter Letters or definitive agreements relating related to the Committed Financing; (B) of the receipt by Parent or Merger Sub of any oral or written notice or communication from any Lender Related Party with respect to any (1) actual or threatened breach, default, cancellation, termination or repudiation (or notice or communications from lenders or other sources of Debt Financing to Parent or Merger Sub of any such actual or threatened breach, default, cancellation, termination or repudiation received by Parent or Merger Sub) by any party to the Commitment Letters or any definitive agreements related to the Financing of any provisions of the Commitment Letter Letters or such definitive agreements; or (2) material dispute or disagreement between or among any parties to the Commitment Letters or any definitive agreements relating related to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO that Parent believes in good faith would reasonably be expected to be adverse to the timely completion of the Financing; and (C) if for any reason Parent or Merger Sub at any time believes that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditionsterms, in the manner or from the Committed Financing Sources sources contemplated by the Commitment Letter Letters or any definitive agreements relating related to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO Parent shall provide any information reasonably requested by Trimble the Company relating to any circumstance of the circumstances referred to in clause (x)the previous sentence as promptly as reasonably practical after the date that the Company delivers a written request therefor to Parent; provided, (y) or (z) of the immediately preceding sentence; provided however, that AGCO Parent shall not be required to share any furnish such information with Trimble if Parent in good faith reasonably believes that is subject doing so would reasonably be expected to (a) result in the loss of attorney-client privilege or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon rights under the occurrence of any circumstance referred to in clause (x)attorney work product doctrine, (yb) breach or violate any applicable Law or Legal Requirement or (zc) of the second preceding sentence resulting in violate any confidentiality obligation with respect to such information.
(d) If any portion of the Committed Debt Financing becoming becomes unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)a breach by the Company of this Agreement), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisionsany “flex” and “securities demand” provisions in any Fee Letter) contemplated in the Debt Commitment Letter and related Fee Letter, Parent will promptly notify the Company in writing (but in any event within two (2) Business Days after obtaining knowledge of the occurrence or discovery thereof) and such portion is reasonably required to effect the Closing, AGCO shall Parent and Merger Sub will use its their respective reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereofto, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For , (i) arrange and obtain the avoidance Debt Financing or such portion of doubtthe Debt Financing from the same or alternative sources (A) on terms and conditions not materially less favorable in the aggregate to Parent and Merger Sub than those contained in the Debt Commitment Letter and related Fee Letter and (B) containing conditions to draw at Closing that would not reasonably be expected to adversely affect the availability thereof that (1) are not more onerous than those conditions and terms contained in the Debt Commitment Letter and related Fee Letter, (2) would not reasonably be expected to prevent or materially delay the Closing or make the Closing materially less likely to occur, and (3) in an amount at least equal to the Debt Financing or such unavailable portion thereof, but in no event more than the Required Financing Amount if such amount is less, as the case may be (the “Alternate Debt Financing”); and (ii) obtain one or more new debt financing commitment letters with respect to such Alternate Debt Financing (the “New Debt Commitment Letters”), which new letters will replace the existing Debt Commitment Letter in whole or in part; provided that in no event shall the reasonable best efforts obligation set forth in this Section 7.15 of Parent be deemed or construed so as to require AGCO or any of its Affiliates Parent to (iA) agree toseek cash equity from any source other than those counterparty to the Equity Commitment Letter, or acceptin any amount with respect to a Guarantor in excess of such Guarantor’s commitment, economic terms that are materially less favorable to AGCO, as determined (B) pay any fees in the reasonable judgment excess of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type those contemplated by the Commitment Letters, or (C) agree to economic terms of the Alternate Debt Financing (including any “flex” provisions relating thereto) that are less favorable in the aggregate than those contemplated by the Debt Commitment Letter or any related Fee Letter (after giving effect to any “flex” provisions therein). Parent will promptly provide a copy of any New Debt Commitment Letter (and any fee letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries therewith or other agreements related thereto (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunderredactions), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCOCompany. In the event that any New Debt Commitment Letters are obtained, (A) assisting any reference in this Agreement to the preparation of, “Commitment Letters” or the “Debt Commitment Letter” will be deemed to include the Debt Commitment Letter to the extent not superseded by a New Debt Commitment Letter at the time in question and executing and delivering, customary certificates or documentsany New Debt Commitment Letters to the extent then in effect; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations any reference in effect with respect this Agreement to the Business;
(iv) assisting with “Financing” or the discharge and termination of any Liens on “Debt Financing” means the assets of debt financing contemplated by the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released Debt Commitment Letter as modified pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;foregoing.
(ve) no less than four (4) Business Days prior to Subject to, and without limiting or modifying the Closing Dateprovisions of Section 8.12(b), furnishing to AGCO Parent and Merger Sub agree that obtaining the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended a condition to nor reasonably likely to harm Parent’s or disparage Trimble or any of its Subsidiaries or the reputationMerger Sub’s obligations hereunder.
Appears in 2 contracts
Sources: Merger Agreement (Moneygram International Inc), Merger Agreement (Moneygram International Inc)
Financing. (a) Subject Buyer shall, and shall cause its applicable Affiliates party to the terms and conditions of this AgreementFinancing Commitments to, AGCO shall use its reasonable best efforts to take, or cause to be taken, all appropriate action, do, or cause to be done, all things necessary, proper or advisable to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) as promptly as reasonably practicable on the terms and conditions set forth in the Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Termsincluding, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or Debt Financing, the Fee Letter or such definitive documents, as applicable, reduces “market flex” provisions) and subject only to the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated conditions contained in the Commitment Letter or such definitive documents (other than Financing Commitments and in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A))Sections 5.01 and 5.02 herein, or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing and completion of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) including to (Ai) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by on the terms (including, with respect to the Debt Financing, the “market flex” provisions) and subject only to the conditions contained in the Financing Commitments or on other terms acceptable to Buyer, so long as such definitive agreements (A) do not contain any additional or modified conditions or other contingencies to the funding of the Financing than those contained in the Financing Commitments as of the date of this Agreement and (B) do not reduce the aggregate amount of the Debt Financing set forth in the Financing Commitments as of the date of this Agreement, unless (1) in case of this clause (B), replaced with an amount of new debt or equity financing on conditions no less favorable to Seller than the terms set forth in the Debt Financing Commitment Letter or the Equity Financing Commitment, as applicable, as of the date hereof and (2) in case of the foregoing clauses (A) and (B), such agreements are not reasonably likely to impair or delay the funding of the Financing or the Closing, (ii) satisfy, and cause its Affiliates to satisfy, on a timely basis (after giving effect to the entire period of the Marketing Period) all conditions applicable to Buyer or its Affiliates contained in the Financing Commitments and (iii) consummate the Financing at the Closing.
(b) For the avoidance of doubt and notwithstanding anything to the contrary in this Section 6.05, Buyer acknowledges and agrees that its obligation to consummate the Transactions on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all the conditions to funding, to consummate set forth herein are not conditioned upon the Committed Financing at availability or prior to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day consummation of the Marketing PeriodFinancing, the availability of any replacement commitments or receipt of the proceeds therefrom.
(c) AGCO Buyer shall give Trimble prompt notice (x) not agree to or permit any amendment, supplement or other modification of, or waive any of its rights under, any breach Financing Commitments or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of without Seller’s prior written consent, which AGCO has Knowledge if such breach consent shall not be unreasonably withheld; provided that Buyer may amend, supplement or default would result in a material delay of, modify the Financing Commitments or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions without Seller’s prior written consent if such amendment, supplement or modification would not: (i) reduce the aggregate amount of the Commitment Letter Financing set forth in the Financing Commitments as of the date of this Agreement, (ii) contain any additional or definitive agreements relating modified conditions or other contingencies to the Committed funding of the applicable Financing if such breach, default, termination than those contained in the applicable Financing Commitments as of the date of this Agreement or repudiation would result (iii) modify in a material manner adverse to Buyer or its Affiliates party thereto, as applicable, the conditions to the funding, enforceability, availability or termination of the Financing, in any case under the foregoing clauses (i), (ii) and (iii), that would make the impairment or delay ofof the funding of the Financing or the Closing reasonably likely. It is agreed and understood that, notwithstanding anything herein to the contrary, the Buyer may (A) amend the Financing Commitments to add lenders, lead arrangers, bookrunners, agents, syndication agents, documentation agents, investors, or in any way limit, similar entities who had not executed the availability Financing Commitments as of the Committed date of this Agreement in accordance with the provisions hereof and of the Financing Commitments and (zB) if at amend or otherwise modify the Debt Financing Commitments to implement any time for any reason AGCO believes in good faith that it will not be able to obtain all or “market flex” provisions applicable thereto.
(d) If any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including including, with respect to the flex Debt Financing, the “market flex” provisions) contemplated contained in the Commitment Letter and Fee LetterFinancing Commitments, Buyer shall promptly notify Seller, and such portion is reasonably required to effect the ClosingBuyer shall, AGCO and shall cause its Affiliates to, use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereofobtain, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic replacement commitments on terms that are materially less favorable will enable Buyer to AGCOconsummate the Transactions; provided that such replacement commitments shall not be subject to any additional or modified conditions or other contingencies to the funding of the Financing that would, as determined individually or in the reasonable judgment of AGCOaggregate, than be reasonably likely to impair or delay the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application funding of the “market flex” provisions) Financing or the Closing (ii) seek any equity investment or any offering, placement, sale or other issuance after giving effect to the entire period of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financingMarketing Period). AGCO Buyer shall deliver to Trimble true Seller complete and complete correct copies of all written agreementsamendments, arrangements supplements, other modifications or contracts agreements (including any side letters or (subject to customary redactions) fee lettersRedacted Fee Letters) pursuant to which any amended, supplemented, modified or replacement commitments shall provide Buyer (directly or indirectly through its Affiliates party thereto) with any portion of the Financing. Upon any amendment, supplement, modification or replacement of the Financing Commitments in accordance with this Section 6.05, the terms “Debt Financing”, “Debt Financing Commitment”, “Redacted Fee Letter”, “Equity Financing”, and “Equity Financing Commitment” shall be in reference to such alternative source shall have committed to provide any Alternative Financingamended, supplemented, modified or replaced commitment.
(de) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCOSeller shall, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provideits Subsidiaries, and shall use its commercially reasonable best efforts to cause its and their respective Subsidiaries’ Representativeslegal counsel and other advisors and the Transferred Company’s accountants, to use commercially reasonable efforts to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation arrangement of the generality Financing as may be reasonably requested by Buyer; provided that (i) such requested cooperation shall not unreasonably interfere with the ongoing operations of Seller and its Affiliates, (ii) Seller shall not be required to provide any audited or unaudited “carve-out” financial statements of the foregoingBusiness other than the Financial Statements and (iii) such cooperation shall not cause any representation, such reasonable best efforts shall includewarranty, covenant or other term in this Agreement to be breached or cause any closing condition set forth in Article V to fail to be satisfied), including the following actions:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) participating in a reasonable number of meetings with the Financing Sources (and to cause the members of senior management and representatives of the Business to participate in such meetings), rating agency presentations, road shows, presentations, conference calls, and due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and cooperating reasonably cooperating with the marketing efforts of AGCO Buyer and the Financing Sources, in each case, in connection with the Available Financing, case upon reasonable notice and at reasonable times mutually agreed upon dates and locations to be mutually agreedtimes;
(ii) delivery to AGCO of assisting Buyer and the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO Financing Sources in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda (including a version thereof that does not contain material non-public information), lender and investor presentations, and other similar documents materials for any debt or equity financing, including to cause the execution and delivery of reasonable and customary representation letters, authorization letters and solvency certificates and to furnish records, data or other information necessary to support material statistical information or claims relating to the Business appearing in the aforementioned materials; in each case in this clause (ii): (A) subject to customary confidentiality provisions and disclaimers, (B) required or customary in connection with the Available Financing Financing, (or any replacement thereof permitted hereunder), including the delivery of customary authorization C) as requested by Buyer and representation letters (D) limited to information to be contained therein with respect to the extent contemplated by or customary in the Available Financing Transferred Company and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliantits Subsidiaries;
(iii) furnishing to Buyer and the extent Financing Sources as promptly as reasonably requested by AGCO, practicable (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y1) the directorsFinancial Statements, officers (2) the audited combined balance sheet and managers statements of Trimble income and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving comprehensive income, combined statements of equity and combined statements of cash flows for the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed Audited Entities for each subsequent fiscal year that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and is ended at least ninety (B90) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days calendar days prior to the Closing Date, furnishing to AGCO (3) the unaudited combined balance sheet and related combined statements of income and comprehensive income and combined statements of cash flows of the Financing Sources all documentation and information as Audited Entities for each subsequent fiscal quarter (other than the fourth fiscal quarter) after December 31, 2018 that is reasonably requested in writing by the Financing Sources ended at least six forty-five (645) Business Days calendar days prior to the Closing Date about (including the Company or Trimble comparable prior year period) and its Subsidiaries (4) such other historical financial information and operating data relating to the Audited Entities (excluding YES Network Holding Company, LLC) reasonably necessary to permit Buyer to complete a private placement of non-convertible debt securities (including information required by Regulation S-X and Regulation S-K under the Securities Act that is also of a type and form customarily included in an offering memorandum with respect to a private placement pursuant to Rule 144A under the Securities Act for financings similar to the Debt Financing and subject to exceptions customary for such financings such as the omission of (x) Compensation Disclosure and Analysis required by Regulation S-K Item 402(b) and (y) any information required by Items 10 through 14 of Form 10-K (other than Item 13 as it relates to Item 404 of Regulation S-K)), including drafts of customary “comfort letters” for a private placement transaction from the Audited Entities’ independent accountants, reasonably requested by Buyer and the Financing Sources in connection with the arrangement, marketing, syndication of the Financing and (B) such other financial or pertinent information regarding the Audited Entities as may be reasonably determine available to the Seller, and which is (1) reasonably requested by Buyer in connection with the preparation of a confidential information memorandum and offering documents customary for the type of financing contemplated by the Financing Commitments as in effect on the date hereof and (2) reasonably necessary in order to consummate the Financing, including in connection with Buyer’s preparation of customary pro forma financial information (excluding any historical financial statements, which are addressed in clause (A) above) (all of the foregoing, the “Required Information”), all of which is Compliant;
(iv) using reasonable best efforts to take such actions as are reasonably requested by Buyer or the Financing Sources to facilitate the satisfaction of the conditions set forth in the Financing Commitments (including, with respect to the Debt Financing, reasonably facilitating the taking of collateral contemplated by the Debt Financing Commitments) and the taking of corporate actions by the Transferred Company and its Subsidiaries; provided that any such taking of collateral or corporate actions shall be contingent upon and effective as of the Closing;
(v) to the extent required in connection with the Financing, requesting the Audited Entities’ independent accountants to provide reasonable assistance to Buyer consistent with customary practices (including to provide consent to Buyer to use audit reports relating to the Financial Statements, on customary terms in connection with the Financing);
(vi) executing and delivering, at and effective as of the Closing, such definitive financing documents and other customary closing documents, as may be required in connection with the Financing; and
(vii) at least four (4) business days prior to the end of the Marketing Period, providing all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, includingincluding the USA PATRIOT Act of 2001, without limitationas amended, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
that has been requested in writing at least eight (vi) 8) Business Days prior to the extent reasonably requested by AGCOend of the Marketing Period; provided that, directing notwithstanding the auditors requirements of Section 6.05(e), (i) Seller and its Affiliates shall not be required to enter into or approve any certificate, document or agreement which will be effective prior to the Closing Date (other than customary representation letters, authorization letters and confirmations (including with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) absence of the Business included presence of material non-public information), subject to customary exclusions) or that would be inaccurate in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements light of the Business are includedfacts and circumstances at the time approved, andauthorized, if requiredexecuted or delivered, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies (ii) Seller and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries Affiliates shall (A) not be required to pay any commitment or other similar fee, (B) have any liability fee or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability (including any guarantee, indemnity, or pledge) in connection with the Available Financing not contingent upon (in the occurrence case of the Transferred Company, prior to the Closing Date or Date), (Diii) be required to take any action that nothing herein will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ require Seller and its Affiliates or any of its Subsidiaries’ Organizational Documents (their respective representatives to provide any information or take any action, the extent any provision creating such conflict was not created in contemplation disclosure or taking of the Available Financing) or any Laws or (y) result in the contravention of, or that which would reasonably be expected to result violate applicable Law, any fiduciary duty, any Contract, or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (it being agreed that the Seller shall give notice to Buyer of the fact that it is withholding such information or documents on any such basis, shall withhold only that portion of such information that is reasonably necessary to be withheld to not violate applicable Law, duty, Contract, or obligation and to preserve attorney-client privilege, and thereafter Seller shall use its reasonable best efforts to cause such information to be provided in a violation or breach ofmanner that would not reasonably be expected to violate such Law, duty, Contract, or obligation or waive attorney-client privilege) and (iv) Seller and its Affiliates and their respective representatives shall not be required to deliver any legal opinion or negative assurance letter in connection with the Financing.
(f) Seller shall give Buyer notice if it becomes aware that the Required Information taken as a default underwhole is or becomes incorrect in any material respect. From the date of this Agreement until the Closing Date, Seller hereby consents for Buyer to use the logos owned by the Business and listed on Section 6.05(f) of the Disclosure Letter, provided that such logos shall be used solely on materials reasonably necessary for the Financing and in a manner that is customary for Financings of this type and solely in a manner that does not harm or disparage the Business, the Transferred Company or any Contract of its Affiliates or their reputation or goodwill. All non-public information regarding the Transferred Company and its Affiliates provided to which Trimble any of Buyer, the Financing Sources or their respective representatives pursuant to this Section 6.05 shall be kept confidential, except for disclosure to potential lenders and investors and their respective representatives that is reasonably required in connection with the Financing or that is otherwise required to be disclosed by the Buyer in connection with the Financing, subject to customary confidentiality protections to the extent applicable.
(g) Buyer shall, promptly upon request by Seller, reimburse Seller for all out-of-pocket costs incurred by Seller or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in connection with such cooperation under this Section 7.15(d)6.05. Trimble hereby consents to the reasonable use of its Buyer and its Subsidiaries’ trademarks Subsidiaries shall, on a joint and logos several basis, indemnify and hold harmless Seller and its Subsidiaries from and against any costs, damages, losses, expenses, or other Liabilities suffered or incurred by them in connection with the Available arrangement of the Financing and any information utilized in connection therewith.
(h) Buyer shall keep Seller informed on a timely basis of the status of the Financing and any material developments relating to the Financing; provided. Without limiting the generality of the foregoing, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm Buyer shall give Seller prompt notice of (i) any default or disparage Trimble breach (or any event that, with or without notice, lapse of its Subsidiaries time or both, would reasonably be expected to constitute a default or breach) by any party under the Financing Commitments or the reputationdefinitive agreements relating to the Financing of which Buyer becomes aware, (ii) any termination of the Financing Commitments, (iii) the rece
Appears in 2 contracts
Sources: Equity Purchase Agreement (Sinclair Broadcast Group Inc), Equity Purchase Agreement (Walt Disney Co)
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO shall use its reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth in the Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO The Buyer shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, or replace, (i) Equity Financing Commitment (the Commitment Letter “Equity Financing”), or (ii) the Fee Letter (or following entry into definitive documents relating to Debt Financing Commitments if, in the Committed Financingcase of the Debt Financing Commitments, such definitive documents) if such amendment, modification modification, waiver or waiver replacement (Ax) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed financing contemplated by the Debt Financing Commitments (including by increasing the “Debt Financing” and together with the Equity Financing, the “Financing”) to an amount committed below the amount that is required, together with other financial resources of fees the Buyer, including amounts available under the Equity Financing Commitment, cash, cash equivalents and marketable securities of the Buyer on the Closing Date, to be paid or original issue discount unless finance the Committed Financing is increased by a corresponding amount or Purchase Price on the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), set forth herein or (By) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, receipt of the Debt Financing in a manner that would, in the case of this subclause (B), would reasonably be expected to (xA) prevent or materially delay or prevent the Closing or (B) materially delay, prevent or otherwise make materially less likely to occur the availability funding of the Committed Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) and shall use 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 arrange and obtain the Debt Financing on the Closing Date taking into account terms and described in the expected timing Debt Financing Commitments (provided, however, that the Buyer may amend or replace the Debt Financing Commitments to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed a Debt Financing Commitment as of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (Bdate hereof), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its including using commercially reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (Ai) maintain in effect the Commitment Letter in accordance with the terms and subject Debt Financing Commitments, (ii) satisfy on a timely basis all conditions applicable to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consentBuyer to obtaining the Debt Financing at the Closing set forth therein, (xiii) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated by the Debt Financing Commitments (and provide copies thereof to the Seller upon reasonable request) and (iv) consummate the Debt Financing in accordance with the terms and conditions of the Debt Financing Commitments at or prior to the Closing.
(b) In the event any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Commitment Letter Debt Financing Commitments (including the flex provisions), the Buyer shall promptly notify the Seller and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its commercially reasonable best efforts to arrange and to obtain in replacement thereof alternative debt financing (“Alternative Financing”) from alternative debt sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with on terms and conditions not materially no less favorable to AGCO the Buyer (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions thereinBuyer) and as in an amount sufficient to consummate the transactions contemplated hereby promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financingFinancing”). AGCO The Buyer shall promptly deliver to Trimble true the Seller true, complete and complete correct copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) agreements pursuant to which any such alternative source shall have committed to provide any the Buyer with the Alternative Financing. For purposes of this Section 5.21, references to “Debt Financing” shall include the financing contemplated by the Debt Financing Commitments as permitted by this Section 5.21 to be amended, modified or replaced and references to “Debt Financing Commitments” shall include such documents as permitted by this Section 5.21 to be amended, modified or replaced, in each case from and after such amendment, modification or replacement.
(c) Notwithstanding anything to the contrary contained in this Agreement, nothing contained in this Section 5.21 or elsewhere in this Agreement shall require, and in no event shall the “commercially reasonable efforts” of the Buyer be deemed or construed to require, the Buyer to (i) bring any litigation or any other enforcement action against the Debt Financing Sources in order to enforce its rights under the Debt Financing Commitments or otherwise, (ii) seek the Equity Financing from any source other than those counterparty to, or in any amount in excess of that contemplated by, the Equity Financing Commitment, (iii) seek or accept Debt Financing on terms less favorable in any material respect than the terms and conditions described in the Debt Financing Commitments (including the flex provisions) as determined in the reasonable judgment of the Buyer or (iv) pay any fees materially in excess of those contemplated by the Debt Financing Commitments (whether to secure a waiver of any conditions contained therein or otherwise).
(d) Prior In order to assist with the ClosingDebt Financing and at the Buyer’s expense, Trimble the Seller shall use its reasonable best efforts to promptly provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provideits, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ RepresentativesRepresentatives to promptly provide their, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
assistance and cooperation as the Buyer and its Affiliates may reasonably request, including, but not limited to, (i) upon reasonable notice, participation by participating in presentations and meetings (including customary one-on-one meetings between senior management and Representatives representatives of Trimblethe Seller and the Debt Financing Sources, Company prospective lenders in respect of the Debt Financing and their respective Subsidiaries (with appropriate seniority rating agencies) and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO the Buyer and the Debt Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in assisting with the preparation of materials for rating agency presentations, offering documents, private placement bank information memoranda, prospectusesbusiness projections, bank information memoranda lender presentations and similar documents required prepared in connection with the Available Financing (or any replacement thereof permitted hereunder)Debt Financing, including the execution and delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging bank information memoranda, (iii) furnishing the Available Buyer and the Debt Financing Sources with financial, due diligence material and updating any Required Information provided to AGCO other pertinent information regarding the Seller as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCOthe Buyer, (Aiv) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation as of the Company or Closing Date, any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the definitive financing documents, agreements including any credit agreements, guarantees, pledge agreements, security agreements, mortgages, deeds of trust and certificates other security documents or other certificates, documents and instruments relating to guarantees, the pledge of the collateral securing the Debt Financing and other matters ancillary to the Debt Financing as may be reasonably requested by the Buyer in connection with the Available Debt Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of otherwise reasonably facilitating the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence pledging of, or only effective as ofand granting and perfecting of Encumbrances in, the Closing and collateral securing the Debt Financing (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred including cooperation in connection with any the payoff of the Indebtedness of Trimble the Seller required by this Agreement and its Subsidiaries and required to be released pursuant to the terms hereoftermination of related Encumbrances), including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to furnishing, within the Closing Datetime period specified in the Debt Financing Commitments, furnishing to AGCO and the Financing Sources all documentation and other information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory regulators and authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, including the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
Act and (vi) to the extent taking all corporate or other actions, and providing such other assistance, necessary or reasonably requested by AGCO, directing the auditors with respect Buyer to permit the consummation of the Debt Financing and to permit the proceeds thereof to be made available to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including Buyer on the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary Closing Date. The Seller hereby consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Debt Financing; provided. For purposes of this Section 5.21(d), howeverreferences to “Debt Financing” shall include any Alternative Financing.
(e) The Buyer shall (i) if the Closing does not occur, that such trademarks indemnify and logos are used solely hold harmless the Seller from and against any and all liabilities and expenses suffered or incurred by the Seller in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any connection with the arrangement of the Debt Financing contemplated by the Debt Financing Commitments and the performance of its obligations under this Section 5.21 and any information utilized in connection therewith (other than information related to the Seller or its Subsidiaries provided by or on behalf of the reputationSeller or its Subsidiaries in writing specifically for use in connection with the Debt Financing offering documents) and (ii) promptly upon request of the Seller reimburse the Seller for all reasonable costs and expenses incurred by the Seller (including those of its Representatives) in connection with the cooperation required by this Section 5.21.
Appears in 2 contracts
Sources: Asset Purchase Agreement (BOVIE MEDICAL Corp), Asset Purchase Agreement (BOVIE MEDICAL Corp)
Financing. (a) Subject to the terms SJW shall, and conditions of this Agreementshall cause its Affiliates to, AGCO shall use its their respective reasonable best efforts to obtain take, or cause to be taken, all actions, and to do, or cause to be done, as promptly as possible, all things necessary, proper or advisable to consummate the Committed Financing or any Substitute Financing on or prior to the Closing Date, including (taking into account any reductions thereof i) maintaining in effect the Commitment Letter until the Closing (provided that the Commitment Letter may be amended, supplemented, modified and replaced as permitted pursuant to this Section 7.15(b)(A6.12), (ii) negotiating and entering into definitive agreements with respect to the Financing on the terms and conditions set forth contained in the Commitment Letter (including any “flex” provisions in the Fee Letterrelated thereto) or on such other terms and conditions that are acceptable to AGCO so long as SJW and its Financing Sources (provided that such other terms and conditions constitute Permitted Financing Terms, and AGCO shall could not permit any amendment or modification reasonably be expected to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documentsx) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces reduce the aggregate amount of the Committed Financing or the net cash proceeds from the Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that below the amount required by SJW to consummate the transactions contemplated in the Commitment Letter or such definitive documents by this Agreement, (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (By) imposes impose new or additional conditions or otherwise expandsexpand, amends amend or modifies modify any of the conditions to the Committed Financing, receipt of the Financing in a manner that would, in the case of this subclause (B), could reasonably be expected to (xi) delay or prevent or materially delay make less likely the Closing or the availability funding of the Committed Financing on the Closing Date taking into account the expected timing (or satisfaction of the Closing Date, taking into account conditions to the expected timing of the Marketing Period, Financing) or (yii) adversely impact the ability of AGCO SJW to enforce its rights against the Financing Parties or any other parties to the Commitment Letter in any material or the definitive agreements with respect thereto, or (z) make it less likely that the terms Financing would be funded (including by making the conditions to obtaining the Financing less likely to occur) or otherwise prevent or delay or impair the ability or likelihood of any such amendment, modification or waiver not in violation of these clauses (A) SJW to consummate the Merger and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions transactions contemplated hereby on the Closing Date) so that such agreements are in effect no later than the Closing, (iii) satisfying all the conditions to the Financing within the control of this Section 7.15SJW at or prior to the Closing, AGCO may amend (iv) accepting to the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to fullest extent all “Committed Financingmarket flex” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related any fee letter relating thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing deemed necessary under the Commitment Letter and (v) enforcing its rights under the Commitment Letter. In the event that all conditions set forth in the Commitment Letter have been satisfied (other than the consummation of the Merger) or, upon funding shall be satisfied, SJW and its Affiliates shall use their reasonable best efforts to cause the Persons providing the Financing (the “Financing Parties”) to fund on the Closing Date the Financing, to the extent the proceeds thereof are required to consummate the Merger and the other transactions contemplated hereby. SJW shall, promptly after obtaining knowledge thereof (and in any event within two Business Days), give CTWS written notice of any (A) breach (or threatened breach) or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any breach or default) by a Financing Party or any party to any definitive financing documents document related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than to the Required AmountFinancing, (B) taking into account the expected timing actual or threatened withdrawal, repudiation or termination of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms)Parties, (C) satisfy all conditions to funding in amendment or modification of, or waiver under, the Commitment Letter and such or (D) change, circumstance or event which causes SJW to believe that it will not be able to timely obtain all or any portion of the Financing on the terms, in the manner or from the Financing Parties or sources contemplated by the definitive agreements with respect thereto that documents related to the Financing, to the extent the proceeds thereof are within its control and, subject to satisfaction of all conditions to funding, required to consummate the Committed Financing at or prior Merger and the other transactions contemplated hereby. SJW shall (i) keep CTWS informed on a reasonably current basis of the status of its efforts to arrange the Financing, and (ii) provide CTWS with copies of all executed material definitive agreements related to the Closing DateFinancing. SJW shall, as applicable, including using and shall use its reasonable best efforts to cause the lenders Financing Sources to, provide CTWS and its Representatives with such access to SJW and the other persons committing Financing Sources as CTWS and its Representatives may reasonably request for the purpose of allowing CTWS and its Representatives to fund understand the Committed status of SJW’s efforts to arrange the Financing; provided, that SJW and its Representatives shall be permitted to participate in any such discussions or communications. Neither SJW nor its Affiliates shall amend, modify or replace the Commitment Letter without the prior written approval of CTWS to the extent such amendment, modification or replacement could reasonably be expected to (I) reduce the aggregate amount of the Financing on or the Closing Date net cash proceeds from the Financing (including by increasing the “Committed amount of fees to be paid or original issue discount) below the amount required by SJW to consummate the transactions contemplated by this Agreement, (II) impose new or additional conditions or otherwise expand, amend or modify any of the conditions to the receipt of the Financing Sources”in a manner that could reasonably be expected to (1) and delay or prevent or make less likely the funding of the Financing (Dor satisfaction of the conditions to the Financing) or (2) adversely impact the ability of SJW to enforce its rights under against the Financing Parties or any other parties to the Commitment Letter and any or the definitive agreements with respect thereto. Trimble acknowledges and agrees , or (III) make it less likely that AGCO shall not the Financing would be required funded (including by making the conditions to obtaining the Financing less likely to occur) or otherwise prevent or delay or impair the ability or likelihood of SJW to consummate the Available Financing before Merger and the final day of other transactions contemplated hereby on the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach Closing Date; provided that notwithstanding the foregoing, SJW may modify, supplement or default by any party to amend the Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, similar entities (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to that have not executed the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions as of the Execution Date). If funds in the amounts set forth in the Commitment Letter or definitive agreements relating to the Committed Financing if such breachLetter, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditionsthereof, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b))become unavailable, or if any portion of the Committed Financing otherwise it becomes reasonably likely that such funds may become unavailable to SJW on the terms and conditions (including set forth therein and, in each case, such funds are required by SJW to consummate the flex provisions) transactions contemplated in the Commitment Letter and Fee Letterby this Agreement, SJW shall, and shall cause its Affiliates, as promptly as practicable (and in any event within two Business Days) following the occurrence of such portion is reasonably required event to effect the Closing, AGCO shall (x) notify CTWS in writing thereof and (y) use its reasonable best efforts to arrange and obtain in replacement thereof alternative substitute financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with on terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, aggregate to SJW than the terms and conditions those set forth in the Commitment Letter and in an amount sufficient to enable SJW to consummate the Fee Merger and the other transactions contemplated hereby in accordance with its terms (the “Substitute Financing”). In the event that new commitment letters are entered into in accordance with any amendment, replacement, supplement or other modification of the Commitment Letter (including the flex provisions thereinin connection with any Substitute Financing) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in permitted pursuant to this Section 7.15 6.12, such new commitment letters shall be construed so as deemed to require AGCO be a part of the “Financing” and deemed to be the “Commitment Letter” for all purposes of this Agreement. SJW shall promptly deliver to CTWS copies of any termination, amendment, modification, waiver or any replacement of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter (including in connection with any Substitute Financing).
(b) SJW shall pay, or cause to be paid, as the same shall become due and payable, all fees and other amounts that become due and payable under the Fee Commitment Letter or the related fee letters.
(assuming c) Notwithstanding anything contained in this Agreement to the application of contrary, SJW expressly acknowledges and agrees that SJW’s obligations hereunder are not conditioned in any manner upon SJW obtaining the “market flex” provisions) or (ii) seek Financing, any equity investment Substitute Financing or any offeringother financing. The failure, placementfor any reason, sale of SJW to have sufficient cash available on the Closing Date to pay the consideration in Merger Consideration in accordance with Article II or other issuance the failure to so pay the Merger Consideration on the Closing Date in accordance with the terms and conditions of any equity securities (it being understood and agreed that any Alternative Financing this Agreement shall be permitted to be in the form constitute a breach of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financingthis Agreement by SJW.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCOCTWS shall, and shall cause ▇▇▇▇▇▇▇’▇ each of the CTWS Subsidiaries to use their respective reasonable best efforts to provideto, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ RepresentativesRepresentatives to, to provide to AGCOSJW such customary cooperation, at AGCOSJW’s sole expense, all cooperation as may be reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter SJW in connection with the Available Financing (which term, for purposes of this Section 6.12(d), shall include any Substitute Financing and any issuance of debt or equity securities issued or incurred in lieu of any Financing or Substitute Financing. Without limitation of the generality of the foregoing), such which efforts shall include using reasonable best efforts shall includeto:
(i) upon reasonable noticecause its management team, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) , including its senior executive officers, and independent accountants to assist SJW in SJW’s preparation for and to participate in a reasonable number of meetings (including customary one-on-one meetings), presentations, road shows, presentations, conference calls, due diligence sessions, drafting sessions and sessions with lenders, investors and rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sourcesagencies, in each case, in connection with the Available Financing, upon reasonable notice and at reasonable times and locations to be mutually agreedagreed upon;
(ii) delivery to AGCO assist SJW with SJW’s preparation of customary rating agency presentations, road show materials, bank information memoranda, credit agreements, registration statements, prospectuses, bank syndication materials, offering documents, private placement memoranda and similar documents customarily required in connection with the Financing, including the marketing and syndication thereof, provided, that any such bank information memoranda, registration statements, prospectuses, bank syndication materials, offering documents, private placement memoranda and similar documents shall contain disclosure and pro forma financial statements reflecting the Surviving Corporation and/or its Subsidiaries as the obligor;
(iii) furnish SJW and the Financing Sources with all Required Information and other financial and other pertinent information regarding the Businessand, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required SJW in connection with the Available Financing (or any replacement thereof permitted hereunder)Financing, including the delivery of other customary authorization financial and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public other information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble CTWS and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the BusinessSubsidiaries;
(iv) assisting assist SJW with SJW’s preparation of pro forma financial information and projections (it being understood that CTWS shall not be responsible for the discharge and termination preparation of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filingssuch pro forma financial information or projections themselves);
(v) no less than four reasonably cooperate with the marketing efforts for any portion of the Financing, including using its reasonable best efforts to ensure that any syndication efforts benefit from its existing lending relationships and using reasonable best efforts to assist SJW in obtaining any corporate credit and corporate family ratings in connection with the Financing;
(4vi) furnish SJW at least three Business Days prior to the Closing Date (to the extent requested within 10 Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources ) with all documentation and other information as is reasonably requested in writing required by Governmental Entities with respect to the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, including the PATRIOT Act, includingAct and 31 C.F.R. § 1010.230;
(vii) assist in preparing schedules thereto as may be reasonably requested by SJW;
(viii) provide customary authorization letters authorizing the distribution of information provided by CTWS to prospective lenders and containing a customary representation to the Financing Sources for the Financing that such information provided by CTWS does not contain a material misstatement or omission and containing a representation to the Financing Sources that the public side versions of such documents, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulationany, a Beneficial Ownership Certificationdo not include material non-public information about CTWS and CTWS Subsidiaries or its or their securities; and
(viix) request the independent accountants of CTWS to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide render customary “comfort letters letters” (including “customary negative assurance” comfort and change period assurance comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included regarding CTWS and its Subsidiaries contained in any offering documents materials relating to the Committed Financing (it being understood that consists failure of Rule 144A marketed debt securities in which the combined financial statements SJW to obtain such comfort letters shall not constitute a breach of the Business are includedthis Section 6.12), and, if required, customary and to provide consents to the for use of their audit reports on the combined historical financial statements of the Business and opinions in any offering documents filed or furnished by SJW with the SEC or in any other materials or disclosures relating to the Available Financing in which financial information of CTWS and its Subsidiaries is included.
(e) Notwithstanding anything to the combined historical financial statements contrary contained in this Agreement (including this Section 6.12): (i) nothing in this Agreement (including this Section 6.12) shall require any such cooperation to the extent that it would (A) require CTWS, any of the Business are includedCTWS Subsidiaries or its Representatives, as applicable, to breach, waive or amend any terms of this Agreement, (B) require cooperation from CTWS, any of the CTWS Subsidiaries or its Representatives to the extent it would cause any condition to the Closing set forth in each case subject Article VII not to such auditors’ customary policies and procedures and applicable auditing standards; providedbe satisfied, that neither Trimble nor (C) unreasonably interfere with the ongoing business or operations of CTWS and/or any of the CTWS Subsidiaries, (D) require CTWS or any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ CTWS’s or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or charter documents, any Laws or (y) 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 to which Trimble CTWS or any of its Subsidiaries is a party party, (E) result in any employee, officer, director or Representative of CTWS or any of its Subsidiaries incurring personal liability with respect to any matters relating to the Financing; (F) require CTWS or any of its Subsidiaries to provide any information the disclosure of which is prohibited or restricted under applicable Law or any Contract or is legally privileged; (G) require the delivery of opinions of external or internal counsel; (H) require CTWS, its Subsidiaries or their Representatives to furnish any financial statements, audit reports or financial information other than to the extent not entered into in contemplation of such statements, reports or information are readily available to, or readily derivable from the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use books and records of, CTWS, any of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm Subsidiaries or disparage Trimble any of their respective Representatives or (I) require CTWS or any of its Subsidiaries or their respective Representatives to execute or approve any definitive financing documents, including any credit or other agreements or certificates in connection with the reputationFinancing (other than customary authorization letters in connection with the Financing, if any, and solely to the extent set forth in Section 6.12(d)(viii) above); (ii) neither CTWS nor any of its Subsidiaries shall be required to pay or incur any commitment or other similar fee or incur or assume any liability or obligation in connection with the Financing prior to the Effective Time (other than as are expressly reimbursable or payable by SJW and Merger Sub and except for the obligation to deliver the customary authorization letters referenced above); (iii) none of the board of directors (or other similar governing body) of CTWS or any of its Subsidiaries shall be required to adopt resolutions approving the Financing; and (iv) none of CTWS, any of its Subsidiaries or any of its or their respective Representatives shall be required to make any representation to SJW, any of its Affiliates, any lender, agent or lead arranger to the Financing, or any other Person with respect to any action under this Section 6.12, as to the solvency of CTWS, any of its Subsidiaries, or any of its or their respective Representatives, or to deliver or require to be delivered any solvency or similar certificate.
(f) SJW shall (i) promptly upon request by CTWS, reimburse CTWS for all of its reasonable and documented out-of-pocket fees and expenses (including reasonable and documented out-of-pocket attorneys’ fees) incurred by CTWS and its Representatives in connection with any cooperation contemplated by this Section 6.12 and (ii) indemnify CTWS, its Subsidiaries and its and their Representatives against any claim, loss, damage, injury, liability, judgment, award, p
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Connecticut Water Service Inc / Ct), Agreement and Plan of Merger (SJW Group)
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO Mercury shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate and obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth described in the Commitment Letter, including using reasonable best efforts to (i) maintain in effect the Commitment Letter, (ii) negotiate definitive agreements with respect thereto on terms and conditions (including the “flex” provisions) contemplated by the Commitment Letter (including any such agreements the “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing TermsDefinitive Agreements”), and AGCO shall not permit any amendment or modification execute and deliver to be made toSaturn a copy thereof as promptly as practicable (and no later than one (1) Business Day) after such execution, or any waiver of any provision under, (iii) satisfy on a timely basis all conditions applicable to the Financing in the Commitment Letter or the Fee Letter Financing Definitive Agreements that are within the control of Mercury and comply with its obligations thereunder, (iv) consummate the Financing at or following entry into definitive documents relating prior to the Committed Closing; provided, that under no circumstances shall Mercury or any of its Subsidiaries be required to issue, or permit Saturn or any of its Subsidiaries to issue, any equity or debt securities, incur, or permit Saturn or any of its Subsidiaries to incur, Indebtedness (other than pursuant to the Financing) or sell, such definitive documentsdispose or otherwise transfer, or permit Saturn or any of its Subsidiaries to sell, dispose or otherwise transfer, any assets in order to satisfy any conditions in the Commitment Letter or in order to arrange or obtain any Financing and (v) if such amendmentenforce its rights under the Commitment Letter or the Financing Definitive Agreements in the event of a breach by the financing sources that impedes or delays the Closing, modification or waiver (A) with respect including seeking specific performance of the parties thereunder. In the event that all conditions to the Commitment Letter or the Fee Letter or such definitive documentsFinancing Definitive Agreements have been satisfied or, as applicableupon funding will be satisfied, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO Mercury shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing Persons providing such Financing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Mergers and the other transactions contemplated by this Agreement (including by taking enforcement action, including seeking specific performance, to cause such lenders and the other Persons providing such Financing before to fund such Financing). Mercury shall have the final day right from time to time to amend, replace, supplement or otherwise modify, or waive any of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to its rights under, the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach Definitive Agreements and/or substitute other debt or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time equity financing for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by same and/or alternative financing sources; provided, that any such amendment, replacement, supplement or other modification to or waiver of any provision of the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after Financing Definitive Agreements that amends the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) Financing and/or substitution of all or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable shall not (A) expand upon the conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the Financing Definitive Agreements or (B) prevent or impede or materially delay the consummation of the Mergers and the other than transactions contemplated by this Agreement. Mercury shall be permitted to reduce the amount of Financing under the Commitment Letter or the Financing Definitive Agreements in its reasonable discretion; provided, that Mercury shall not reduce the Financing to an amount committed below the amount that is required, together with the Repayment Amount and the financial resources of Mercury, including cash on hand and marketable securities, to consummate the Mergers; and provided, further, that such reduction shall not (x) expand upon the conditions precedent or contingencies to the funding on the Closing Date of the Financing as a result set forth in the Commitment Letter or the Financing Definitive Agreements or (y) prevent or materially impede or materially delay the consummation of any reductions thereof permitted under Section 7.15(b)), or if the Mergers and the other transactions contemplated by this Agreement. If any portion of the Committed Financing otherwise becomes unavailable or Mercury becomes aware of any event or circumstance that makes any portion of the Financing unavailable, in each case, on the terms and conditions (including the flex “flex” provisions) contemplated in the Commitment Letter and Fee Letter, or the Financing Definitive Agreements and such portion is reasonably required to effect fund the Closingaggregate Cash Consideration, AGCO Mercury shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative debt financing (“Alternative Financing”) from the same and/or alternative sources financial institutions in an amount at least equal sufficient to consummate the unavailable portion thereoftransactions contemplated by this Agreement, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with upon terms and conditions not materially less favorable to AGCO (or its Subsidiaries)favorable, as determined in the reasonable judgment of AGCOaggregate, to Mercury or the Saturn Merger Surviving Corporation than the terms and conditions set forth those in the Commitment Letter and or the Fee Letter (including the flex provisions therein) and Financing Definitive Agreements as promptly as reasonably practicable following the occurrence of such event. Mercury shall give Saturn prompt oral and written notice (but in any event not later than one (1) Business Day after the occurrence) of any material breach by any party to the Commitment Letter or the Financing Definitive Agreements or of any condition not likely to be satisfied, in each case, of which Mercury has Knowledge, any termination of the Commitment Letter or the Financing Definitive Agreements. Mercury shall keep Saturn informed on a reasonably current basis of the status of its efforts to consummate the Financing. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as syndication of the Financing to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in extent permitted by the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall not be permitted deemed to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financingviolate Mercury's obligations under this Agreement.
(db) Prior to the Closing, Trimble Saturn shall use its reasonable best efforts to provide to AGCOprovide, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provideits Subsidiaries, and shall use its reasonable best efforts to cause each of its and their respective Subsidiaries’ Representatives, including legal, tax, regulatory and accounting, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter Mercury in connection with the Available Financing. Without limitation Financing or any alternate debt financing or debt securities issuance in connection with the financing of the generality Mergers (collectively the “Financing Arrangements”) (provided, that such requested cooperation does not unreasonably interfere with the ongoing operations of the foregoingSaturn and its Subsidiaries), such reasonable best efforts shall include:
including (i) upon reasonable noticeproviding financial and other information relating to Saturn and its Subsidiaries to Mercury and the lenders and other financial institutions and investors that are or may become parties to the Financing Arrangements and to any underwriters, participation initial purchasers or placement agents in connection with the Financing Arrangements (the “Financing Parties”) that is customary for such financing or reasonably necessary for the completion of the Financing by the Financing Parties, including information regarding the business, operations, financial projections and prospects of Saturn and its Subsidiaries that is customary for such financing or reasonably necessary for the completion of the Financing by the Financing Parties, (ii) participating and causing senior management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) Saturn to participate in a reasonable number of meetings (including customary one-on-one meetings) with any Financing Parties and other presentations, road shows, presentations, conference callsdrafting sessions, due diligence sessions (including accounting due diligence sessions, ) and sessions with the rating agencies as are reasonably necessary for the completion of the Financing by the Financing Parties, (iii) assisting in the preparation of (A) any customary offering documents, bank information memoranda, Forms 8-K, registration statements, prospectuses and potential lenders similar documents (including all historical and other customary syndication activities pro forma financial statements and reasonably information regarding Saturn and its Subsidiaries that is required by Regulations S-K and S-X to be included or incorporated by reference in a registration statement) for any of the Financing Arrangements or offering of debt securities in connection therewith, and (B) materials for rating agency presentations, (iv) cooperating with the marketing efforts for any of AGCO and the Financing SourcesArrangements (including consenting to the use of Saturn’s and its Subsidiaries’ logos; provided that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage Saturn or its Subsidiaries or the reputation or goodwill of Saturn or any of its Subsidiaries), (v) assisting in each casethe preparation of and executing and delivering (or using reasonable best efforts to obtain from its advisors), and causing its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), (A) credit agreements and other loan documents, underwriting or note purchase agreements, indentures, currency or interest hedging agreements and other contracts in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO any of the Required Information Financing Arrangements (collectively, the “Financing Documents”), customary certificates (including a certificate of the principal financial officer of Saturn or any Subsidiary with respect to solvency matters), legal opinions or other documents and instruments relating to guarantees and other financial and other pertinent information regarding matters ancillary to the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance Financing as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required Mercury in connection with any of the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization Arrangements and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar other documents required to be delivered under the Financing Documents and (B) the amendment of any of Saturn’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements, or other agreements, in each case, on terms satisfactory to Mercury and that are reasonably requested by Mercury in connection with arranging any of the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documentsArrangements; provided, however, that (x) no obligation of the Company Saturn or any of its Subsidiaries under any such document agreements or amendments shall be effective until the Closing other than in and; provided, further, that Saturn may reasonably deny such request, (vi) using its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, including providing customary comfort letters to the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates underwriters in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination initial purchase of any Liens on the assets of the Business incurred securities in connection with any Indebtedness of Trimble Financing Arrangements and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, providing customary consents to the use inclusion of their audit reports on the combined historical financial in registration statements of Mercury or Saturn, (vii) using its reasonable best efforts to permit any cash and marketable securities of Saturn and its Subsidiaries to be made available to Mercury at the Business in any offering documents relating Closing, (viii) providing authorization letters to the Available Financing Parties authorizing the distribution of information to prospective lenders or investors and containing a representation to the Financing Parties that the public side versions of such documents, if any, do not include material nonpublic information about Saturn or its Affiliates or securities, (ix) using its reasonable best efforts to ensure that the Financing Parties benefit from the existing lending relationships of Saturn and its Subsidiaries, (x) cooperating reasonably with the Financing Parties’ due diligence investigation of Saturn and its subsidiaries, including due diligence performed by any Financing Parties and their respective counsel in which the combined historical financial statements connection with any of the Business are includedFinancing Arrangements, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of Saturn and (xi) at the request of Mercury, use its reasonable best efforts to file a registration statement on Form S-3 with respect to a guarantee by Saturn of Indebtedness of Mercury which becomes automatically effective which registers Saturn’s issuance or guarantee of the debt securities to be issued in each case subject connection with any Financing Arrangements, which guarantees shall not be effective prior to such auditors’ customary policies and procedures only upon the Closing; provided that in no event shall Saturn be required to take any actions that would encumber any of its assets prior to the consummation of the Mergers or that would result in a breach of any of its Contracts; and applicable auditing standards; provided, further, that until the Subsequent Effective Time occurs, neither Trimble Saturn nor any of its Subsidiaries shall (Ax) be required to pay any commitment or other similar fee, (By) have any liability or any obligation under any loan credit agreement and or any related documents, unless and until document or any other agreement or document related to the Closing occurs Financing (except or alternative financing that Mercury may raise in connection with the authorization and representation letters referred transactions contemplated by this Agreement) or (z) be required to in clause (ii) above), (C) incur any other liability in connection with the Available Financing (or any alternative financing that Mercury may raise in connection with the transactions contemplated by this Agreement) unless reimbursed or reasonably satisfactorily indemnified by Mercury.
(c) Mercury (i) shall promptly, upon request by Saturn, reimburse Saturn for all reasonable and documented out-of-pocket costs (including reasonable attorneys’ fees) to the extent incurred by Saturn, any of its Subsidiaries or their respective Representatives in connection with the cooperation of Saturn and its Subsidiaries contemplated by this Section 6.10, (ii) acknowledges and agrees that Saturn, its Subsidiaries and their respective Representatives shall not contingent upon the occurrence have any responsibility for, or incur any liability to any Person under any of the Closing Date Financing Arrangements that Mercury may request in connection with the transactions contemplated by this Agreement and (iii) shall indemnify and hold harmless Saturn, its Subsidiaries and their respective Representatives from and against any and all losses, damages, claims, costs or (D) be required expenses suffered or incurred by any of them in connection with any of the Financing Arrangements or Financing Documents and any information used in connection therewith, other than with respect to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ information provided by Saturn or any of its Subsidiaries’ Organizational Documents , except in the event that such losses, damages, claims, costs or expenses arose out of or result from the willful misconduct or gross negligence of Saturn, its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is, or the Financing Definitive Agreements are amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing in accordance with Section 6.10(a), or if Mercury substitutes other financing for all or a portion of the Financing, each of Mercury and Saturn shall comply with its covenants in Sections 6.10(a) and (b) with respect to the extent any provision creating Commitment Letter or the Financing Definitive Agreements, as so amended, replaced, supplemented or otherwise modified and with respect to such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party other financing to the same extent not entered into in contemplation of that Mercury and Saturn would have been obligated to comply with respect to the Financing and the provisions in this Section 7.15(d). Trimble hereby consents Sections 1.2, 8.1(b)(ii) and 10.11 relating to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries Commitment Letter or the reputationFinancing Definitive Agreements and the Financing shall be deemed to refer to the Commitment Letter or the Financing Definitive Agreements as so amended, replaced, supplemented or otherwise modified and to such other financing, as applicable.
Appears in 2 contracts
Sources: Merger Agreement (Schering Plough Corp), Merger Agreement (Merck & Co Inc)
Financing. (a) Subject to the terms Each of Anthem and conditions of this Agreement, AGCO Cigna shall use its reasonable best efforts to obtain take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange the Committed Financing and related transactions described in the Commitment Letter, including using reasonable best efforts to (taking i) negotiate and enter into account any reductions thereof pursuant to Section 7.15(b)(A)) definitive agreements with respect thereto on the terms and conditions set forth in contemplated by the Commitment Letter (including any “flex” provisions in the Fee Letter) or on such with other terms and conditions that are acceptable agreed by Anthem, Cigna and the Financing Parties), (ii) satisfy (or obtain a waiver of) on a timely basis all conditions to AGCO so long as such other terms obtaining the Financing set forth therein, (iii) consummate the Financing at or prior to the Closing and conditions constitute Permitted Financing Terms(iv) with respect to Anthem, enforce its rights under the Commitment Letter and AGCO the definitive agreements relating to the Financing.
(b) Notwithstanding Section 5.14(a), Anthem shall not permit any amendment have the right from time to time to amend, supplement or modification to be made tootherwise modify, or waive any waiver of any provision its rights under, the Commitment Letter Letter, or the Fee Letter (or following entry enter into definitive documents relating other financing arrangements as an alternative to the Committed Financing; provided that Anthem shall not enter into any such amendment, such definitive documents) supplement, modification, waiver or alternative if such amendment, modification supplement, modification, waiver or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) alternative imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, or otherwise expands, amends or modifies any other provision of the Commitment Letter, in a manner that would, in the case of this subclause would (B), reasonably be expected to (xi) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) and adversely impact affect the ability of AGCO Anthem to fund its obligations when due under this Agreement or (ii) materially and adversely affect the ability of Anthem to enforce its rights against under the other parties to terms of the Commitment Letter in any material or the definitive agreements with respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”)thereto; provided, further, that subject to compliance with the other provisions of this Section 7.15, AGCO Anthem may amend the Commitment Letter or such the definitive documents agreements with respect thereto to correct typographical errors, add additional lenders, arrangers arrangers, bookrunners, and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver in a manner that would not materially adversely affect the ability of Anthem to Trimble copies of any such amendment, modification or replacement. For purposes of fund its obligations when due under this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedAgreement.
(bc) AGCO Anthem and Cigna shall, and shall use its reasonable best efforts (taking into account cause their respective Subsidiaries to, refrain from taking, directly or indirectly, any action that would reasonably be expected to result in the anticipated timing failure of any of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included or in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such any definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior agreement related to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing PeriodFinancing.
(cd) AGCO Each of Anthem and Cigna shall give Trimble the other party prompt written notice (xi) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material threatened breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating documents related to the Committed Financing of any provisions which such party becomes aware and (ii) of the Commitment Letter occurrence of an event or definitive agreements relating development that would reasonably be expected to adversely impact the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able ability to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter Letter.
(e) If Anthem or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided Cigna becomes aware that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated contained in the Commitment Letter and Fee Letter, each of Anthem and such portion is reasonably required to effect the Closing, AGCO Cigna shall use its reasonable best efforts to arrange and obtain in replacement thereof thereof, and negotiate and enter into definitive agreements with respect to, alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal sufficient to consummate the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and Mergers as promptly as reasonably practicable following the occurrence of such event. For ; provided, however, that such replacement commitment shall not, without the avoidance prior written consent of doubteach of Anthem and Cigna (which shall not be unreasonably withheld, in no event shall conditioned or delayed), be subject to any additional or modified conditions or other contingencies to the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any funding of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, Financing than the economic terms those contained in the Commitment Letter and that would be reasonably expected to prevent or materially impede, interfere with, hinder or delay the Fee Letter (assuming the application consummation of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative FinancingMergers.
(df) Prior to the Closing, Trimble Each of Anthem and Cigna shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provideto, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representativesrepresentatives to, to on a timely basis, provide to AGCO, at AGCO’s sole expense, all reasonable cooperation reasonably requested by AGCO and other party or the Financing Parties that is reasonably necessary and customarily required for financings of the type contemplated by the Commitment Letter customary to assist in connection with obtaining the Available FinancingFinancing if such requested cooperation does not unreasonably interfere with the ongoing operations of Anthem or Cigna, as applicable. Without limitation of limiting the generality of the foregoing, such cooperation shall in any event include using reasonable best efforts shall include:
with respect to: (i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) participating in a reasonable number of meetings, road shows, presentations, conference calls, due diligence meetings and drafting sessions, sessions and participating in reasonable and customary due diligence, (ii) furnishing the Financing Parties with rating agencies and potential lenders such financial and other pertinent information as may be reasonably requested to consummate the Financing, including all financial statements and financial data of the type required by Regulation S-X and Regulation S-K under the Securities Act and applicable to a registration statement under the Securities Act on Form S-3, including delivery of (A) audited consolidated balance sheets and related audited statements of income, stockholders’ equity and cash flows of Cigna for each of the three fiscal years most recently ended at least 90 days prior to the Closing Date and (B) unaudited consolidated balance sheets and related unaudited statements of income, stockholders’ equity and cash flows of Cigna for each subsequent fiscal quarter ended at least 45 days prior to the Closing Date, (iii) assisting the Financing Parties in the preparation of (I) an offering document for any portion of the Financing and (II) materials for rating agency presentations and providing customary syndication activities authorization letters related thereto, (iv) obtaining customary financing accountants’ comfort letters and consents of accountants from Cigna’s independent public accounting firm for use of their reports in any materials relating to the Financing and in connection with any filings required to be made by Anthem pursuant to the Securities Act (including any registration statement) relating to the Financing and (v) reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO for any portion of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession Financing. For purposes of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing clauses (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iiif) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (yg) of this Section 5.14 only, “Financing” shall include the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released financings expressly contemplated pursuant to the terms hereofCommitment Letter, including obtaining customary lien release letters any issuance(s) of Takeout Securities and related termination filings;
Term Facilities (v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included both terms are defined in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) aboveCommitment Letter), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputation.
Appears in 2 contracts
Financing. (a) Subject to the terms and conditions of this AgreementSection 6.15, AGCO Purchaser shall use its reasonable best efforts to obtain take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) as promptly as practicable and in a timely fashion on the terms and conditions described in the Commitment Documents, including using its reasonable best efforts to (a) maintain in effect the commitment for the Financing set forth in the Commitment Letter Documents and comply with all covenants or agreements of Purchaser (and cause its Affiliates to comply with any covenant or agreement of any of its Affiliates) set forth in the Commitment Documents or any definitive documentation relating to the Financing, (b) negotiate and execute definitive agreements with respect thereto on the terms and conditions contemplated by the Commitment Documents (including any “flex” provisions flex terms in the Fee LetterCommitment Documents) and otherwise on terms acceptable to Purchaser and its Financing Sources, (c) satisfy or obtain a waiver of (and cause its Affiliates to satisfy or obtain such waiver), on a timely basis, all conditions applicable to Purchaser and its Affiliates in such other terms Commitment Documents and conditions the definitive agreements related thereto that are acceptable within its or its Affiliates’ control, (d) in the event that all conditions to AGCO so long the commitment of any counterparty to the Commitment Documents providing such Financing have been satisfied (or waived, as such other terms and conditions constitute Permitted applicable), consummate the Financing Termson or prior to the Closing Date, and AGCO (e) use commercially reasonable efforts to cause the lenders and the other Person(s) providing the Financing to fund when required hereunder the Financing required to consummate the Transaction. Purchaser shall not permit any amendment or modification to be made to, or any waiver of any provision under, or remedy under the Commitment Letter or Documents (except in compliance with the Fee Letter (or following entry into definitive documents relating to flex provisions of the Committed Financingfee letters as in effect as of the date hereof), such definitive documents) if such amendment, modification or waiver (Ai) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing changing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), to an amount below the amount required, together with all other financial resources by Purchaser, to consummate the transactions contemplated hereby on the terms set forth in this Agreement, (ii) amends the existing, or (B) imposes new or additional additional, conditions or otherwise expands, amends or modifies any of the conditions precedent to the Committed Financing, in a manner that would, in the case of this subclause (B), iii) would reasonably be expected to (x) delay or prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account or make the expected timing funding of the Closing DateFinancing less likely to occur, taking into account the expected timing of the Marketing Period(iv) imposes additional material obligations on Seller, or its Subsidiaries prior to the Closing Date or (yv) adversely impact the ability of AGCO Purchaser or any of its Affiliates, as applicable, to enforce its rights against the other parties to the Commitment Letter in any material respect (Documents or the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by (the amendments described in the foregoing clauses (i) through (v), “Prohibited Amendments”). Purchaser shall deliver to Seller true and complete copies of any amendment, modification, supplement, consent or waiver to or under any of the Commitment Letter on Documents or the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing promptly upon execution thereof other than amendments or modifications solely for the purpose of which AGCO has Knowledge if such breach joining additional arrangers or default would result financing sources following the date hereof to the extent effected pursuant to the terms of the Notes Offering Commitment Letter or the Loan Agreement, as applicable. Purchaser shall keep Seller informed on a current basis and in a reasonable detail of the status of its efforts to arrange, and of any material delay developments concerning the timing of, or in any way limit, the availability closing of the Committed Financing. Purchaser shall give Seller notice (i) promptly after obtaining knowledge thereof, of any actual or likely material breach, violation, default, termination or repudiation by any party to any of the Commitment Documents or definitive documents related to the Financing, (yii) of the its receipt of any written notice or other communication, in each case from any Committed of its Financing Source with respect to any actual or potential material Sources alleging a breach, material violation default, termination or repudiation by any party to the Commitment Letter Documents or any definitive agreements relating document related to the Committed Financing of any provisions of the Commitment Letter Documents or any definitive agreements relating document related to the Committed Financing if such breachFinancing, default, termination (iii) the occurrence of an event or repudiation would result in development that Purchaser expects to have a material delay of, or in any way limit, and adverse impact on the availability ability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able Purchaser to obtain all or any material portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter Documents, (iv) of any material dispute or disagreement between or among any parties to any of the Commitment Documents or any definitive agreements document relating to the Committed Financing. As soon as reasonably practicable after Financing with respect to the date Trimble delivers conditionality or amount of the Financing or the obligation to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating fund the Financing or the amount of the Financing to any circumstance referred to in clause be funded at the Closing (x), (ybut excluding ordinary course negotiations) or (ziv) of otherwise, if the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon Financing contemplated by the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise Commitment Documents becomes unavailable on the terms and conditions (including any “flex” provisions) contemplated therein, in whole or in part, for any reason (each of the foregoing clauses, a “Financing Failure Event”). As soon as reasonably practicable, but in any event within two Business Days of the date Seller delivers to Purchaser a written request, Purchaser shall provide to Seller any information reasonably requested by Seller relating to any Financing Failure Event. If any portion of the Financing becomes unavailable on the terms and conditions (including any applicable market flex provisions) contemplated in by the Commitment Letter Documents and Fee Letteralternative financing (so long as the terms thereof are of the type that would not constitute a Prohibited Amendment) is not then made available in an amount equal to such portion, and such portion is reasonably required to effect pay the ClosingPurchase Price on the terms and conditions contemplated by this Agreement and to pay Purchaser’s fees and expenses related thereto, AGCO Purchaser shall promptly notify Seller in writing and Purchaser shall use its reasonable best efforts to arrange and obtain in replacement thereof thereof, and negotiate and enter into definitive agreements with respect to, alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal sufficient to consummate the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), Transactions with terms and conditions (including market flex provisions) not materially less favorable favorable, taken as a whole, to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, Purchaser than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and Documents, as promptly as reasonably practicable following the occurrence of such event. For event but no later than the avoidance final day of doubtthe Marketing Period; provided, that in no event will the reasonable best efforts of Purchaser be deemed or construed to require Purchaser to (A) pay fees materially in excess of those contained in the Commitment Documents (including the market flex provisions) or agree to "market flex" terms, materially less favorable to Purchaser than the corresponding market flex terms contained in or contemplated by the Commitment Documents or (B) enter into any alternative financing terms the terms of which are materially less favorable to Purchaser than the terms contained in the Commitment Documents on the date hereof (taken as a whole).
(b) Notwithstanding anything contained in this Section 6.15 or in any other provision of this Agreement, in no event shall Purchaser be required to amend or waive any of the reasonable best efforts obligation set forth terms or conditions hereof.
(c) Subject, in each case, to the rights of the parties to the Commitment Documents under the terms thereof and the definitive documentation with respect to the Financing, none of the parties hereto in their capacities hereunder shall have any rights or claims against any Financing Source in connection with this Section 7.15 be construed so Agreement, the Commitment Documents, the Financing, the definitive documentation in connection thereto or any of the transactions contemplated thereby, and, without prejudice to the rights of each Financing Source pursuant to the Commitment Documents and the definitive documentation with respect to the Financing, each Financing Source, solely in its capacity as an agent, underwriter, purchaser, lender or arranger, shall not have any rights or claims against any party hereto or any related Person thereof, in connection with this Agreement, whether at law or equity, in contract, in tort or otherwise (other than with respect to require AGCO enforcing their rights as third party beneficiaries of this Agreement). In furtherance and not in limitation of the foregoing waiver, it is acknowledged and agreed that no Financing Sources shall have any liability for any claims or damages to any Seller or any of its Affiliates to (i) agree toSubsidiaries in connection with this Agreement, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and Documents, the Fee Letter (assuming Financing or the application of the “market flex” provisions) transactions contemplated hereby or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financingthereby.
(d) Prior Notwithstanding anything in Section 10.10 to the Closingcontrary, Trimble shall use its reasonable best efforts each of the parties hereto agrees that it will not bring or support any action (whether at law, in equity, in contract, in tort or otherwise) against any Financing Sources or any other Persons that have committed to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter or otherwise entered into agreements in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and Financing or other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, financings in connection with the Available Financing, at reasonable times and locations transactions contemplated hereby in any way relating to be mutually agreed;
(ii) delivery to AGCO this Agreement or any of the Required Information transactions contemplated by this Agreement, including any dispute arising out of or in any way relating to the Commitment Documents or the performance thereof, in any forum other than the Supreme Court of the State of New York, County of New York, or, if under applicable law exclusive jurisdiction is vested in the federal courts, the United States District Court for the Southern District of New York in the County of New York (and other financial and other pertinent information regarding the Businessappellate courts thereof). The provisions of this Section 6.15(d) shall be enforceable by each Financing Source, Company its Affiliates and their respective Subsidiaries in the possession of Trimble, the Company successors and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputationassigns.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Assertio Therapeutics, Inc), Asset Purchase Agreement (Collegium Pharmaceutical, Inc)
Financing. (a) Subject Parent and Merger Subsidiary shall use their reasonable best efforts to arrange the Financing on the terms and conditions described in the Commitment Letter or on other terms that would not adversely impact the ability of Parent or Merger Subsidiary to consummate the transactions contemplated hereby, including using reasonable best efforts (taking into account the anticipated timing of the Marketing Period) to (i) negotiate and enter into definitive agreements with respect thereto on the terms and conditions contained therein (including any “market flex” provisions) or on other terms reasonably acceptable to Parent and not in violation of this Section 8.09, (ii) satisfy on a timely basis all conditions and covenants applicable to Parent in the Commitment Letter that are within its control and otherwise comply with its obligations thereunder, (iii) maintain in effect the Commitment Letter until the transactions contemplated by this Agreement are consummated, (iv) enforce its rights under the Commitment Letter, and (v) subject to the terms and conditions contemplated by the Commitment Letter, consummate the Financing at the Closing. Parent shall have the right from time to time to amend, replace, supplement or otherwise modify, or waive any of its rights under, the Commitment Letter, and/or substitute other debt financing for all or any portion of the Financing from the same and/or alternative Financing Sources, including without limitation to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Financing Commitment as of the date of this Agreement; provided, AGCO that any such amendment, replacement, supplement or other modification to or waiver of any provision of the Commitment Letter that amends the Financing and/or substitution of all or any portion of the Financing shall use its reasonable best efforts not (i) impose any additional conditions precedent or expand upon the conditions precedent to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions as set forth in the Commitment Letter Letter, (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (yii) adversely impact the ability of AGCO Parent or Merger Subsidiary to enforce its rights against the other parties to the Commitment Letter in any material respect or (iii) prevent or impede or delay the terms consummation of any such amendment, modification or waiver not in violation of these clauses (A) the Merger and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing transactions contemplated by the Commitment Letter (or definitive financing documents related thereto) as this Agreement. Parent shall be permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto)in its reasonable discretion; provided, (y) that Parent shall not reduce and/or replace the Financing to an amount committed below the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCOthat is required, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on handother financial resources of Parent and Merger Subsidiary including cash, cash equivalents and available lines marketable securities of creditParent, is no less than Merger Subsidiary, the Required Amount, (B) taking into account Company and the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter Company’s Subsidiaries on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to fundingClosing Date, to consummate the Committed Financing at Merger on the terms contemplated by this Agreement; and provided further, that such reduction shall not (i) impose any additional conditions precedent or prior expand upon the conditions precedent to the Closing DateFinancing as set forth in the Commitment Letter, as applicable, including using its reasonable best efforts (ii) adversely impact the ability of Parent or Merger Subsidiary to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under against the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party other parties to the Commitment Letter or definitive agreements relating (iii) prevent or impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. For the avoidance of doubt, the syndication of the Financing to the Committed extent permitted by the Commitment Letter shall not be deemed to violate Parent’s obligations under this Agreement. Without limiting the generality of the foregoing, Parent and Merger Sub shall give the Company prompt notice: (A) of any material breach or material default (or any event or circumstance that, with or without notice, lapse of time or both, would reasonably be expected to give rise to any material breach or material default) by any party to any Commitment Letter or definitive document related to the Financing of which AGCO has Knowledge if such breach Parent or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, its Affiliates becomes aware; (yB) of the receipt of any written notice or other communication, in each case written communication from any Committed Financing Source Person with respect to any any: (x) actual or potential material breach, material default, termination or repudiation by any party to the any Commitment Letter or any definitive agreements relating document related to the Committed Financing of or any provisions of the Commitment Letter or any definitive agreements relating document related to the Committed Financing if such breachor (y) material dispute or disagreement between or among any parties to any Commitment Letter or any definitive document related to the Financing (but excluding, defaultfor the avoidance of doubt, termination or repudiation would result in a material delay of, or in any way limit, ordinary course negotiations with respect to the availability terms of the Committed Financing or any definitive agreement with respect thereto); and (zC) if at any time for any reason AGCO Parent or Merger Sub believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditionsterms, in the manner or from the Committed Financing Sources sources contemplated by the Commitment Letter or the definitive agreements relating documents related to the Committed Financing; provided, that in no event will Parent or Merger Subsidiary be under any obligation to disclose any information that is reasonably believed to be subject to attorney-client or similar privilege or that is requested for purposes of litigation. As soon as reasonably practicable practicable, but in any event within three (3) Business Days after the date Trimble the Company delivers to AGCO Parent or Merger Sub a written request, AGCO Parent and Merger Subsidiary shall provide any information reasonably requested by Trimble the Company relating to any circumstance referred to in clause (xA), (yB) or (zC) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is , and subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) proviso of the second immediately preceding sentence resulting in sentence. In the event any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter(including any “market flex” provisions), and such portion is reasonably required to effect the Closing, AGCO Parent shall use its reasonable best efforts to arrange and to obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with on terms and conditions not materially less favorable to AGCO Parent and Merger Subsidiary in an amount sufficient to consummate the transactions contemplated by this Agreement (any such alternative financing, any amended or its Subsidiariessubstitute financing permitted by this Section 8.09(a), and the Financing, an “Available Financing”). In the event that on the final day of the Marketing Period (i) all or any portion of the Financing structured as determined High Yield Financing has not been consummated, (ii) all closing conditions contained in Article 9 shall have been satisfied or waived (other than those conditions that by their nature will not be satisfied until the reasonable judgment of AGCO, than Closing) and (iii) all conditions to the terms and conditions Bridge Financing set forth in the Commitment Letter have been satisfied, then Parent shall borrow under and use the Fee Letter proceeds of the Bridge Financing (including or such alternative bridge financing) to replace such affected portion of the flex provisions therein) and as promptly as reasonably practicable following High Yield Financing on the occurrence of such eventClosing Date. For Notwithstanding the avoidance of doubt, in no event shall the reasonable best efforts obligation foregoing or anything else set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimbleherein, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version hereby acknowledges that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO it shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, no claims (contractual or only effective as of, the Closing and (Botherwise) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of against any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents Source relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries Merger or the reputationFinancing.
Appears in 2 contracts
Sources: Merger Agreement (Labarge Inc), Merger Agreement (Ducommun Inc /De/)
Financing. (a) 7.11.1 Subject to the terms and conditions of this Agreement, AGCO shall use its reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth in the Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall Purchaser will not permit any amendment or modification to be made to, or any waiver of any provision underor remedy pursuant to, the Debt Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documentsrelated fee letter) if such amendment, modification or waiver would reasonably be expected to (Ai) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces reduce the aggregate amount of available under the Committed Financing Debt Commitment Letter; (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discountii) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes impose new or additional conditions precedent to the availability of the Debt Financing or otherwise expandsexpand, amends amend or modifies modify any of the conditions to the Committed Financing, receipt of the Debt Financing or any other terms to the Debt Financing in a manner that would, in the case of this subclause (B), would reasonably be expected to (xA) prevent or materially delay or prevent the Closing Closing; or (B) materially delay or prevent the funding of the Debt Financing, or the availability satisfaction of the Committed Financing on conditions to obtaining the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, Debt Financing; or (yiii) materially adversely impact the ability of AGCO Borrower to enforce its rights against the other parties to the Debt Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, it being understood that subject to compliance with the other provisions of this Section 7.15, AGCO Borrower may amend the Debt Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and lead arrangers, bookrunners, syndication agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any other similar entities party thereto. AGCO shall promptly deliver to Trimble copies who had not executed the Debt Commitment Letter as of any such amendment, modification or replacement. For purposes the date of this Section 7.15 and Section 5.6 and Agreement). Any reference in this Agreement to (1) the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Debt Financing” shall will include the financing contemplated by the Debt Commitment Letter (as amended or definitive financing documents related thereto) as permitted by modified in compliance with this Section 7.15(a7.11.1; and (2) to be amended, modified or replaced and references to “Debt Commitment Letter” shall will include such document as permitted by amended or modified in compliance with this Section 7.15(a) to be amended, modified or replaced7.11.1.
(b) AGCO shall 7.11.2 Subject to the terms and conditions of this Agreement, Purchaser will use its reasonable best efforts to take (taking into account or cause to be taken) all actions and to do (or cause to be done) all things necessary, proper and advisable to arrange and obtain the anticipated timing Debt Financing on the terms and conditions (including, to the extent required, the full exercise of any “flex” provisions) described in the Closing Date Debt Commitment Letter and the Marketing PeriodFee Letter (or on other terms that, with respect to conditionality, are not less favorable to Borrower than the terms and conditions (including any “flex” provisions) set forth in the Debt Commitment Letter and the Fee Letter), including using its reasonable best efforts to (Ai) maintain in effect the Debt Commitment Letter in accordance with the terms and subject to the conditions thereof; (ii) negotiate, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) execute and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into deliver definitive agreements with respect to the Committed Debt Financing contemplated by the Debt Commitment Letter on the terms and conditions contained in the Commitment Letter (including which may include the “flex” provisions included in provisions) contemplated by the Debt Commitment Letter and the related Fee Letter) Letter (or on such other terms that that, with respect to conditionality, are acceptable not less favorable to AGCO so long as such other Borrower than the terms and conditions constitute Permitted Financing Terms(including any “flex” provisions) set forth in the Debt Commitment Letter), ; (Ciii) satisfy on a timely basis all conditions to funding that are applicable to Borrower in the Debt Commitment Letter and such definitive agreements with respect thereto that are within its Borrower’s control and(or, subject if deemed advisable by Borrower, seek the waiver of conditions applicable to satisfaction of all conditions to funding, to Borrower contained in the Debt Commitment Letter); (iv) consummate the Committed Debt Financing at or prior to the Closing Date, as applicableClosing, including using its reasonable best efforts to cause the lenders and the other persons committing Financing Sources to fund the Committed Debt Financing on at the Closing Date Closing; (v) comply with Borrower’s obligations pursuant to the “Committed Financing Sources”) Debt Commitment Letter; and (Dvi) enforce its Borrower’s rights under pursuant to the Debt Commitment Letter. Borrower will fully pay, or cause to be fully paid, all commitment or other fees arising pursuant to the Debt Commitment Letter as and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Periodwhen they become due.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if 7.11.3 If at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Debt Financing on the terms and conditions, in the manner terminates or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letterunavailable, and such portion is reasonably required to effect the Closing, AGCO Purchaser shall use its commercially reasonable best efforts to arrange for and to obtain in replacement thereof as promptly as practicable following any such event alternative financing (“Alternative Financing”) from alternative sources on similar terms and conditions as those contained in the Debt Commitment Letter and the Fee Letter in an amount at least equal sufficient, when added to the unavailable portion thereofof the Debt Financing that is available, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), together with terms available cash of Purchaser and conditions not materially less favorable to AGCO (or its Subsidiaries), the borrowings available under the Borrower’s existing revolving credit facility and available cash of the Company and its Subsidiaries, to pay the Required Amount and, for the purposes of this Agreement, all references to the Debt Financing shall be deemed to include such Alternative Financing, all references to the Debt Commitment Letter shall include the applicable documents for the Alternative Financing and all references to the lenders shall include the Persons providing or arranging the Alternative Financing; it being understood that if Purchaser enters into a commitment letter with respect to any Alternative Financing, Purchaser shall be subject to the same obligations with respect to such Alternative Financing as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in this Agreement with respect to the Debt Financing.
7.11.4 Notwithstanding anything to the contrary contained in this Agreement, nothing contained in this Section 7.11 will require, and in no event will the reasonable best efforts of Purchaser be deemed or construed to require, Purchaser or Borrower to pay any material fees in excess of those contemplated by the Debt Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financingterms thereof). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputation
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Rackspace Technology, Inc.), Agreement and Plan of Merger (Rackspace Technology, Inc.)
Financing. (a) Subject to the terms Parent and conditions of this Agreement, AGCO Merger Sub shall use its their respective reasonable best efforts to obtain arrange and consummate the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth described in the Commitment Letter at or prior to the Closing (including any “flex” provisions or on terms more favorable in the Fee Letteraggregate to Parent and Merger Sub) or on such other terms including by: (i) maintaining in effect and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, enforcing the Commitment Letter or and complying with their respective obligations thereunder; (ii) negotiating, entering into and delivering the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Debt Financing contemplated by (the Commitment Letter “Definitive Financing Agreements”) on the terms and conditions contained in the Commitment Letter (including and, to the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and extent such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or executed and delivered prior to the Closing DateEffective Time, as applicablemaintaining in effect and enforcing such definitive agreements; (iii) satisfying (or, including using its reasonable best efforts to cause if deemed advisable by Parent, seeking the lenders and the other persons committing to fund the Committed Financing waiver of) on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay oftimely basis all terms, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms covenants and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) Definitive Financing Agreements applicable to Parent and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms Merger Sub that are materially less favorable within their control; (iv) participating in and assisting with the preparation of rating agency presentations and meetings with rating agencies; and (v) upon satisfaction of all of the conditions precedent under Section 8.1 and Section 8.2 (other than those conditions that by their nature are to AGCObe satisfied at the Closing, as determined in but subject to the reasonable judgment satisfaction or waiver of AGCOthose conditions), than consummating or causing the economic terms contained in consummation of the Financing including by enforcing their rights under the Commitment Letter and the Fee Definitive Financing Agreements to the extent necessary at such time to fund the Required Amount.
(b) 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 one (1) Business Day the same comes to the Knowledge of Parent, if at any time prior to the Closing Date (i) the Commitment Letter (assuming the application or any of the “market flex” provisions) commitments with respect to the Debt Financing thereunder or any Definitive Financing Agreement, as applicable, shall expire or be terminated for any reason, (ii) seek for any equity investment reason, all or a portion of the Debt Financing becomes unavailable or (iii) any Financing Source or any offeringother Person that is a party to any Commitment Letter breaches, placementdefaults, sale terminates or repudiates any provisions thereunder or threatens in writing to do any of the foregoing. Parent and Merger Sub shall not amend, alter or replace, or agree to amend, alter or replace, the Commitment Letter in any manner that would (A) impose new or additional conditions or otherwise expand, amend or modify any of the conditions to the receipt of the Financing, (B) reduce the amount of cash proceeds from the Financing available to fund the Required Amount, in each case, in a manner that would materially adversely affect the ability of Parent, Merger Sub or their respective Affiliates to enforce their respective rights against the other issuance parties to the Commitment Letter or the Definitive Financing Agreements or reasonably be expected to prevent or materially impair or delay the ability of any equity securities Parent to consummate the transactions contemplated by this Agreement, in each case with respect to the foregoing sub-clauses (A) and (B) without the prior written consent of the Company (it being understood and agreed that any Alternative Financing shall Parent and Merger Sub may amend the Commitment Letter solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Commitment Letter as of the date of this Agreement and to reflect assignments and replacements of lenders in accordance with the terms of the syndication provisions of the Commitment Letter with respect to the Debt Financing, provided that no such addition, assignment or replacement would reasonably be permitted expected to be in prevent or materially impair or delay the form ability of any such equity financingParent to consummate the transactions contemplated by this Agreement). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(dc) Prior to If any portion of the ClosingDebt Financing becomes unavailable on the terms and conditions contemplated in the Commitment Letter for any reason, Trimble Parent and Merger Sub shall use its their reasonable best efforts to provide arrange to AGCOobtain alternative financing from alternative sources in an amount sufficient, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representativeswhen taken together with the available cash of Parent, to provide to AGCOfund the Required Amount and pay any related fees and expenses earned, at AGCO’s sole expense, all cooperation reasonably requested by AGCO due and that is necessary and customarily required for financings payable as of the type Closing Date (the “Alternate Financing”) and to obtain, and, if obtained, will provide the Company with true, correct and complete copies of, any new financing commitment that provides for at least the same amount of financing as such Commitment Letter as originally issued, to the extent needed to fund the Required Amount (the “Alternate Commitment Letter”). In the event any Alternate Financing is obtained and an Alternate Commitment Letter is entered into in accordance with this Section 7.10(c), (i) any reference in this Agreement to “Debt Financing” shall mean the debt financing contemplated by the Commitment Letter as modified pursuant to clause (ii) below, and (ii) any reference in connection with this Agreement to the Available Financing“Commitment Letter” (or defined terms that use such phrase) shall be deemed to include the Commitment Letter to the extent not superseded by an Alternate Commitment Letter, at the time in question and any Alternate Commitment Letter to the extent then in effect. Without In furtherance of and not in limitation of the generality of the foregoing, such reasonable best efforts shall include:
in the event that (i) upon reasonable notice, participation by management and Representatives any portion of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sourcesstructured as a capital markets financing is unavailable, in each case, in connection with regardless of the Available Financing, at reasonable times reason therefor and locations to be mutually agreed;
(ii) delivery all closing conditions contained in Section 8.1 and Section 8.2 have been satisfied or waived (other than those conditions that by their nature are to AGCO be satisfied or waived at the Closing, provided that such conditions are capable of being satisfied as of such day assuming the Closing was to occur on such day), then Parent or Merger Sub shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessary to consummate, or cause to be consummated, and shall use, or cause to be used, the proceeds of the Required Information and other financial and other pertinent information regarding Bridge Financing in lieu of such capital markets financing no later than one (1) Business Day following the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (satisfaction or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation waiver of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to applicable conditions set forth in clause (ii) above, above to consummate the Closing when Parent and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be Merger Sub are required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed do so pursuant to Section 2.2; it being understood that such directorsobligations to use the Bridge Financing (including any alternative bridge financing contemplated by any Alternate Financing obtained in accordance with this Agreement) shall exist without regard to the then market conditions or other general economic conditions, officers including the interest rate and managers are to remain as directors, officers and managers cost of any portion of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies structured as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) capital markets financing and regardless of whether or not it is commercially reasonable to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputationdo so.
Appears in 2 contracts
Sources: Merger Agreement (LVB Acquisition, Inc.), Merger Agreement (Zimmer Holdings Inc)
Financing. (a) Subject Buyer shall not agree to the terms and conditions any amendment, replacement, supplement or other modification of, or waive any of this Agreementits rights under, AGCO shall use its reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth in the Commitment Letter or any definitive agreements related to any Financing, in each case, without the prior written consent of the Seller; provided that the Buyer may amend, replace, supplement or otherwise modify or waive its rights under any Commitment Letter or definitive agreement related to any Financing (including any “flex” provisions replacement thereof in whole or in part with a high yield and/or high yield bridge financing) without the Fee Letter) or on such other terms and conditions that are acceptable to AGCO prior written consent of Seller so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, replacement, supplement, modification or waiver (Ai) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces does not reduce the aggregate amount of the Committed Financing below an amount sufficient to consummate the transactions contemplated hereby and pay related fees and expenses, (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discountii) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes does not impose new or additional conditions to the Financing that would be reasonably expected to delay or otherwise expands, amends or modifies any prevent the funding of the conditions to the Committed Financing, and (iii) does not adversely impact the ability of Buyer to timely consummate the transactions contemplated by this Agreement. 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 (in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Dateeach case, taking into account the expected timing of the Marketing Period, or (y) adversely impact to consummate and obtain the ability of AGCO to enforce its rights against Financing on the other parties to terms and conditions described in the Commitment Letter Letters (as such terms may be modified or adjusted in any material respect (accordance with the terms of any such amendmenthereof or of, modification or waiver not in violation of these clauses (A) and (B)within the limits of, the “Permitted Financing Terms”flex” provisions contained in any related fee letter); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter including (or definitive financing documents related theretoi) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its using reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (Aw) maintain in effect the Commitment Letter Letters in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) negotiate and enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together definitive agreements with respect thereto on the Committed Financing, the “Available Financing”) terms and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto)conditions contained therein, (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter satisfy (or definitive financing documents related theretoif deemed advisable by Buyer, seek waiver of) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, a timely basis (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions applicable to funding in the Commitment Letter and such definitive agreements with respect thereto Buyer that are within its control and, subject to set forth in such definitive agreements and (z) upon satisfaction of all conditions to fundingsuch conditions, to consummate the Committed Financing at or prior to the Closing Date, as applicable, including using its Financing; and (ii) use commercially reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter Letters (provided that all conditions to Buyer’s obligations under this Agreement (except those to be satisfied at the Closing) have been satisfied or waived and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO Period has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financingended). AGCO Buyer shall deliver to Trimble true furnish correct and complete copies of all written agreementssuch definitive agreements to Seller promptly upon their execution. At Seller’s request, arrangements or contracts Buyer shall inform Seller in reasonable detail of the status of its efforts to obtain and consummate the Financing (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) providing substantially final draft agreements to the extent reasonably requested by AGCOrequested). Upon any such amendment, replacement, supplement, modification or waiver of any Commitment Letter in accordance with this Section 5.18(a), (A) assisting the term “Commitment Letter” shall, with respect to the debt financing, mean the Commitment Letter, as so amended, replaced, supplemented, modified or waived in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (xaccordance with this Section 5.18(a) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements Buyer shall promptly deliver correct and complete copies of such amendments, replacements, supplements, modifications or waivers to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputationSellers.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Nexstar Broadcasting Group Inc), Asset Purchase Agreement (Nexstar Broadcasting Group Inc)
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO The Debt 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 to obtain the Committed proceeds of the Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth described in the Commitment Letter (Financing Commitments, including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required AmountCommitments, (B) taking into account satisfy on a timely basis all conditions applicable to the expected timing of Debt Purchaser to obtaining the Marketing PeriodFinancing that is within its control (including by consummating the Equity Financing at or prior to the Closing), negotiate and (C) to the extent not previously entered into, enter into definitive agreements with respect to the Committed Financing thereto on terms and conditions described in or contemplated by the Commitment Letter on the terms Financing Commitments and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee LetterD) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior to the Closing Date, as applicable, (including using its reasonable best efforts by seeking to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Roll-Over Commitments against the lenders and other persons providing the Roll-Over Commitments). The Debt Purchaser shall not agree to or permit any amendment, replacement, supplement or other modification of, or waive any of its rights under, any Financing Commitment Letter and or any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party related to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with without the Available FinancingCompany’s prior written consent (which consent shall not be unreasonably withheld or delayed), at reasonable times provided that any such amendment, replacement, supplement or other modification to the Roll-Over Commitments (i) does not involve any conditions to funding the Roll-Over that are not contained in, and locations satisfied on the date of entry into, such amendment, replacement, supplement or other modification to be mutually agreed;
the same extent as, the Roll-Over Commitments and (ii) delivery to AGCO does not prevent, materially impede or materially delay the consummation of the Required Information Roll-Over or the transactions contemplated by this Agreement or the TDC Agreement; and other financial provided that the Debt Purchaser may replace and other pertinent information regarding amend the BusinessRoll-Over Commitments solely for the purpose of adding lenders, Company and their respective Subsidiaries lead arrangers, book runners, syndication agents or similar entities who had not executed the Roll-Over Commitments as of the date of this Agreement so long as such addition does not prevent, materially impede or materially delay the consummation of the Roll-Over or the transactions contemplated by this Agreement or the TDC Agreement. Upon any such amendment, replacement, supplement or modification of the Financing Commitments in the possession of Trimbleaccordance with this Section 5.10, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available term “Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document Commitments” shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and mean the Financing Sources all documentation and information Commitments as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company so amended, replaced, supplemented or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputationmodified.
Appears in 2 contracts
Sources: Debt Restructuring Agreement (Hungarian Telecom LP), Debt Restructuring Agreement (Invitel Holdings a/S)
Financing. (ai) Subject to the terms and conditions of this Agreement, AGCO shall The Purchaser will use its reasonable best efforts to take, or cause to be taken, all actions and use its reasonable best efforts to do, or cause to be done, all things necessary, proper or advisable to arrange, consummate and obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) financing on the terms and conditions set forth described in the Debt Commitment Letter (including as such terms and conditions may be modified or adjusted in accordance with the terms hereof and thereof and within the limits of any “market flex” provisions in therein) (the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms“Financing”), and AGCO shall the Purchaser will not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, the Debt Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver would (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces reduce the aggregate amount of the Committed Financing (including by increasing changing the amount of fees to be paid in respect of or original issue discount unless of the Committed Financing is increased by a corresponding amount (or the Committed Financing is otherwise made available to fund payment of fees having similar effect), in each case, other than any such fees or original issue discount) from discount that contemplated in the Commitment Letter is paid or such definitive documents (otherwise funded by sources other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from the Financing), unless, after such reduction, the Contemplated Transactions hereby could still be consummated on the Initial Closing Date and the aggregate proceeds of other sources the remaining portion of financing or the Financing and of any Replacement Financing plus unrestricted available cash or otherwise in accordance with Section 7.15(b)(A)), on hand of the Purchaser as of the Initial Closing Date would be sufficient to satisfy the obligations to pay the Required Closing Amount or (B) imposes impose new or additional conditions conditions, or otherwise expandsamend, amends modify or modifies expand any conditions (in a manner adverse to the Purchaser or the Sellers), to the receipt of the conditions to Financing, in the Committed Financingcase of either clause (A) or (B) above, in a manner that would, in the case of this subclause (B), could reasonably be expected to (x1) prevent prevent, impede or materially delay the Closing or the availability ability of the Committed Financing on Purchaser to consummate the Closing Date taking into account the expected timing Initial Closing, (2) make any portion of the Closing Date, taking into account the expected timing Financing (or satisfaction of the Marketing Periodconditions to obtaining the Financing) less likely to be obtained or prevent, impede or delay in any material respect the funding of the Financing or (y3) adversely impact the ability of AGCO the Purchaser to enforce its rights against the other parties to the Debt Commitment Letter; provided that the Purchaser may, without the consent of the Sellers, (x) amend the Debt Commitment Letter (I) in accordance with any material respect “market flex” provisions thereof and (II) to add lenders, lead arrangers, bookrunners, syndication agents or similar entities (in each case, excluding any Affiliates of the terms Purchaser) who had not executed the Debt Commitment Letter as of the date of this Agreement and (y) otherwise amend or replace the Debt Commitment Letter so long as in the case of this clause (y), (I) any such amendment, modification or waiver not in violation amendment satisfies the requirements of these clauses (A) and (B)) above and (II) with respect to replacements, the replacement debt commitments otherwise satisfy the terms and conditions of an Alternative Financing set forth in clause (iii) below (any debt financing ▇▇▇▇▇://▇▇▇.▇▇▇.▇▇▇/Archives/▇▇▇▇▇/data/1002638/000100263816000084/exhibit21.htm 53/134 under any such replacement debt commitment letter satisfying such requirements, a “Permitted Financing TermsReplacement Financing”); provided. The Purchaser shall provide a correct and complete copy of each replacement debt commitment letter (together with a correct and complete copy of any related replacement fee letter, that subject which may be redacted as provided in Section 4.5 with respect to compliance the Fee Letter) with respect to any Replacement Financing to the other provisions Sellers as promptly as practicable but in any event within three (3) Business Days of this Section 7.15, AGCO may amend the Purchaser’s entry into such commitment letter. In the event of such amendment or replacement of the Debt Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(aclause (i), (1) the financing under such amended or replaced Debt Commitment Letter will be deemed to be amendedthe “Financing” as such term is used in this Agreement, modified or replaced and references to (2) the term “Debt Commitment Letter” shall will be deemed to include any such document as permitted by this Section 7.15(aamended or replaced debt commitment letter, (3) the term “Fee Letter” will be deemed to be amended, modified include any amended or replacedreplaced fee letter with respect thereto and (4) any reference to the “Financing Sources” will include the financing institutions contemplated to provide any such alternative or replacement financing.
(bii) AGCO shall The Purchaser will use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Debt Commitment Letter (or including any definitive financing documents related theretoagreements entered into in connection therewith), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account satisfy on a timely basis (or obtain the expected timing waiver of) all conditions in the Debt Commitment Letter applicable to, and within the control of, the Purchaser necessary to obtaining the Financing on the Initial Closing Date and comply with (or obtain a waiver of) its obligations thereunder (but excluding any condition where the failure to be so satisfied is a direct result of the Marketing Period, negotiate and enter into definitive agreements with respect Sellers’ failure to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long furnish information as such other terms and conditions constitute Permitted Financing Termsrequired under Section 5.8(b)), (C) satisfy all subject to the terms and upon satisfaction or waiver of the conditions to funding set forth in the Debt Commitment Letter and such definitive agreements with respect thereto that are within its control and(without limiting clause (B) above), subject cause the Financing Sources under the Debt Commitment Letter to satisfaction of all conditions to funding, to consummate fully fund the Committed Financing at provided for thereunder on or prior to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Initial Closing Date (the “Committed Financing Sources”) and (D) fully enforce the Financing Sources’ obligations and its rights under the Debt Commitment Letter to the extent required to consummate the Contemplated Transactions on the Initial Closing Date. The Purchaser will keep the Sellers reasonably informed on a reasonably current basis and in reasonable detail of the status of the Purchaser’s efforts to arrange the Financing and to satisfy the conditions thereof and shall provide to the Sellers, upon the Sellers’ request and otherwise within three (3) Business Days of the occurrence thereof, copies of any amendments, modifications or supplements to the Debt Commitment Letter related to the availability of the Financing, the commitment by the lenders to provide the Financing, or the conditions, the “certain funds” provisions, any “market flex” provisions (redacted in a customary manner) or the termination provisions of the Debt Commitment Letter. In the event that the Purchaser commences an enforcement action to enforce its rights under the Debt Commitment Letter and any or the definitive agreements with respect thereto. Trimble acknowledges entered into in connection therewith and/or to compel the Financing Sources under the Debt Commitment Letter to fund the Financing (any such action, a “Financing Action”), the Purchaser shall keep the Sellers reasonably informed on a reasonably current basis and agrees that AGCO shall not be required to consummate the Available Financing before the final day in reasonable detail of the Marketing Periodstatus of the Financing Action.
(ciii) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or If any portion of the Committed Financing on becomes reasonably likely to be unavailable or the terms and conditions, in the manner Purchaser becomes aware of any event or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject reasonably likely to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting result in any portion of the Committed Financing becoming being unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion a breach by the Sellers of this Agreement that would cause the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be available in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause accordance ▇▇▇▇▇://▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇.▇▇▇.▇▇▇/Archives/▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputation/data/1002638/000100263816000084/exhibit21.htm 54/134
Appears in 1 contract
Sources: Bill of Sale
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO The Purchaser shall use its reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth (including the flex provisions in any related fee letter) described in the Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms Financing Letters as promptly as possible and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) Financing Letters if such amendment, modification or waiver (A) with respect to reduces (or could have the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces effect of reducing) the aggregate amount of the Committed Equity Financing or the Debt Financing (including by increasing the amount of fees to be paid or original issue discount discount) unless (x) the Committed Debt Financing or the Equity Financing, as applicable, is increased by a corresponding amount or and (y) after giving effect to any of the Committed Financing is otherwise made available transactions referred to fund such fees or original issue discountin clause (x) from that contemplated above, the representation and warranty set forth in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A))5.07 shall be true and correct, or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, or (C) otherwise expands, amends or modifies any other provision of the Financing Letters in a manner that would, in the case of this subclause (B), would reasonably be expected to (x) delay or prevent or materially delay the Closing or delay, prevent or make less likely the availability funding of the Committed Financing on the Closing Date taking into account the expected timing (or satisfaction of the Closing Date, taking into account conditions to the expected timing funding of the Marketing Period, Financing) or (y) adversely impact the ability of AGCO the Purchaser to enforce its rights against the other parties to the Commitment Letter in any material Financing Letters or the definitive agreements with respect thereto (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that that, subject to compliance with the other provisions of this Section 7.156.15, AGCO the Purchaser may amend the Debt Commitment Letter or such definitive documents solely to correct typographical errors, add additional lendersarrangers, arrangers bookrunners and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party theretoagents). AGCO The Purchaser shall promptly deliver to Trimble Sellers copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing SourceAgreement, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) Financing Letters as permitted by this Section 7.15(a) or required, as the case may be, to be amended, modified or replaced by this Section 6.15(a) and references to “Commitment LetterFinancing Letters” shall include such document documents as permitted by this Section 7.15(a) permitted, or required, as the case may be, to be amended, modified or replacedreplaced by this Section 6.15(a).
(b) AGCO The Purchaser shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to to, as promptly as possible, (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required AmountLetters, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Debt Commitment Letter on the terms and conditions (including the flex provisions) contained in the Debt Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable not materially less favorable to AGCO so long as such other the Purchaser than the terms and conditions constitute Permitted Financing Terms(including flex provisions) in the Debt Commitment Letter), (C) satisfy on a timely basis all conditions to funding in the Debt Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to and in the Equity Commitment Letter and consummate the Committed Financing at or prior to the Closing Date, as applicableClosing, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on to fund such Financing at the Closing Date (the “Committed Financing Sources”) and Closing, (D) enforce its rights under the Commitment Letter Financing Letters and any (E) comply with its obligations under the Financing Letters. The Purchaser shall keep Sellers informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing as reasonably requested by Sellers and provide to the Companies copies of the material definitive agreements with respect thereto. Trimble acknowledges for the Debt Financing and agrees that AGCO such other information and documentation as shall not be required to consummate reasonably requested by the Available Financing before Companies for purposes of monitoring the final day progress of the Marketing Period.
(c) AGCO financing activities. Without limiting the generality of the foregoing, the Purchaser shall give Trimble Sellers prompt notice (x) of any breach or default by any party to any of the Commitment Letter Financing Letters or definitive agreements relating related to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed FinancingPurchaser become aware, (y) of the receipt of (A) any written notice or (B) other written communication, in each case from any Committed Financing Source with respect to any (1) actual or potential material breach, material default, termination or repudiation by any party to any of the Commitment Letter Financing Letters or definitive agreements relating related to the Committed Financing of any provisions of the Commitment Letter Financing Letters or definitive agreements relating related to the Committed Financing if such breach, default, termination or repudiation would result in a (2) material delay of, dispute or in disagreement between or among any way limit, the availability parties to any of the Committed Financing Letters or definitive agreements related to the Financing with respect to the obligation to fund the Financing or the amount of the Financing to be funded at Closing, and (z) if at any time for any reason AGCO the Purchaser believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources sources contemplated by any of the Commitment Letter Financing Letters or definitive agreements relating related to the Committed Financing. As soon as reasonably practicable after practicable, but in any event within two (2) Business Days of the date Trimble Sellers delivers to AGCO the Purchaser a written request, AGCO the Purchaser shall provide any information reasonably requested by Trimble the Companies relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause .
(x), (yc) or (z) of the second preceding sentence resulting in In event any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including including, in respect of the flex provisionsDebt Financing, any “flex” provisions applicable thereto) contemplated in the Commitment Letter and Fee LetterFinancing Letters, and such portion is reasonably required to effect in each case, for any reason whatsoever, the Closing, AGCO 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 arrange and to obtain in replacement thereof alternative financing from alternative sources in an amount sufficient, when added to the portion of the Financing that is available, to consummate the transactions contemplated by this Agreement and to pay all related fees and expenses (“Alternative Financing”) from alternative sources as promptly as practicable following the occurrence of such event and to obtain and provide Sellers with a copy of, the new financing commitment that provides for such Alternative Financing (the “Alternative Financing Commitment Letter”). Without limiting the generality of the foregoing, in an amount at least equal the event any portion of the Financing becomes unavailable for any reason and, after four consecutive weeks or by the date which is two (2) weeks prior to the unavailable portion thereofTermination Date, as Purchaser has not secured Alternative Financing or alternative equity commitments in respect of the case may be (taking into account any reductions thereof pursuant amount of the Financing so unavailable, Sellers shall have the right to Section 7.15(b)(A))provide, with terms and conditions not materially less favorable or to AGCO (cause Parent or its Subsidiaries)or their respective Subsidiaries to provide, as determined alternative equity financing on substantially the same terms (including price) being provided by the equity investors in Purchaser and/or alternate debt financing on substantially the reasonable judgment of AGCO, than the same terms and conditions set forth in the Debt Commitment Letter in an amount sufficient, when added to the portion of the Financing that is available, to consummate the transactions contemplated by this Agreement and to pay all related fees and expenses (and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of Parties shall cooperate in good faith to implement any such eventalternative equity and/or debt financing). For the avoidance of doubtAs applicable, in no event shall the reasonable best efforts obligation set forth references in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to Agreement (i) agree toto Financing or Debt Financing shall include Alternative Financing, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek to any equity investment Financing Letter or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Debt Commitment Letter shall include the Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative FinancingCommitment Letter.
(d) If the Debt Commitment Letter is replaced, amended or modified, including as a result of obtaining Alternative Financing, or if the Purchaser substitutes other debt financing for all or any portion of the Debt Financing in accordance with this Section 6.15, the Purchaser shall comply with its obligations under this Agreement, including this Section 6.15, with respect to the Debt Commitment Letter as so replaced, amended or modified to the same extent that the Purchaser were obligated to comply prior to the date the Debt Commitment Letter was so replaced, amended or modified.
(e) Prior to the ClosingClosing Date, Trimble Sellers, the Companies and their respective Subsidiaries shall use its their reasonable best efforts to provide to AGCOthe Purchaser, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective commercially reasonable efforts to cause their representatives, including legal and accounting representatives, to provide, in each case at the Purchaser’s sole expense, such cooperation reasonably requested by the Purchaser that is customary in connection with the arrangement of the Debt Financing (provided, that such requested cooperation does not unreasonably interfere with the ongoing operations of the Business), including reasonable best efforts to provide(i) furnish to the Purchaser such financial and other pertinent information regarding Sellers, and shall use its reasonable best efforts to cause its the Companies and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation Subsidiaries as may be reasonably requested by AGCO the Purchaser and that is necessary and customarily required needed for financings of the type contemplated by the Debt Commitment Letter in connection with (provided, that Sellers, the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company Companies and their respective Subsidiaries shall only be obligated to deliver such financial statements and information to the extent they may be reasonably obtained from the books and records of Sellers, the Companies and their respective Subsidiaries without undue effort or expense and such financial statements and information shall not include (with appropriate seniority and expertisex) any pro forma financial statements or information or (y) any information relating to, or based on, all or any component of the Financing), (ii) participate in a reasonable number of meetingsmeetings and presentations with prospective lenders and investors, road shows, presentations, conference calls, due diligence sessions, and sessions with rating the ratings agencies and potential lenders and other customary syndication activities and reasonably cooperating contemplated by the Debt Commitment Letter, in each case in connection with the Debt Financing and only to the extent customarily needed for financings of the type contemplated by the Debt Commitment Letter; (iii) reasonably assist the Purchaser and the Financing Sources in their preparation of (A) any bank information memoranda and related lender presentations and (B) materials for rating agency presentations; (iv) reasonably cooperate with the syndication and marketing efforts of AGCO the Purchaser and the Financing SourcesSources with respect to the Debt Financing, in each case, in connection with only to the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO extent customarily needed for financings of the Required Information type contemplated by the Debt Commitment Letter; (v) provide the Purchaser all documentation and other financial and other pertinent information regarding with respect to Sellers, the Business, Company Companies and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is been reasonably requested in writing by the Financing Sources Purchaser at least six nine (69) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required in connection with the Debt Financing by U.S. regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
and (vi) facilitate the providing of documents evidencing the release of Liens applicable to the extent reasonably requested by AGCOCompanies, directing the auditors with respect to Transferred Subsidiaries or the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are includedAssets, in each case subject required to such auditors’ customary policies be released at Closing, including but not limited to, Liens arising pursuant to or securing the Credit Agreement (if requested by the Debt Financing Sources), guarantees and procedures granting of security interests in and applicable auditing standards; providedpledges of collateral and assisting in the negotiation and preparation, that neither Trimble nor any and execution and delivery at the Closing, of its Subsidiaries shall the definitive documents solely to the extent required by the Debt Commitment Letter as a condition to funding the Debt Financing. Notwithstanding the foregoing, (A) be required such requested cooperation shall not (i) unreasonably disrupt the operations of the Business or Sellers, the Companies or their respective Subsidiaries or (ii) cause significant competitive harm to pay any commitment the Business or other similar feeSellers, the Companies or their respective Subsidiaries if the transactions contemplated by this Agreement are not consummated, (B) have nothing in this Section 6.15 shall require cooperation to the extent that it would (x) cause any liability or obligation under any loan agreement and related documents, unless and until condition to the Closing occurs set forth in Article VII to not be satisfied or (except the authorization and representation letters referred to in clause (iiy) above)cause any breach of this Agreement, (C) incur none of Sellers, the Companies or their respective Subsidiaries shall be required to (1) pay any commitment fee or any other fees or amounts to the Financing Sources, (2) incur or assume any liability in connection with the Available financings contemplated by the Financing Letters or the Financing, (3) deliver or obtain opinions of internal or external counsel, (4) provide access to or disclose information where Sellers determine that such access or disclosure could jeopardize the attorney-client privilege or contravene any Law or Contract or (5) waive or amend any terms of this Agreement or any other Contract to which any of Sellers, the Companies or their respective Subsidiaries is a party, (D) none of the directors of Sellers, the Companies or their respective Subsidiaries acting in such capacity shall be required to execute, deliver or enter into or perform any agreement, document or instrument with respect to the Financing or adopt any resolutions approving the agreements, documents and instruments pursuant to which the Financing is obtained, in each case that is not contingent upon the occurrence of Closing or that would be effective prior to the Closing Date or (D) and no directors that are not continuing in such capacity after Closing shall be required to take execute, deliver or enter into or perform any action that will such agreement, document or instrument), and (xE) conflict none of Sellers, the Companies or their respective Subsidiaries or their respective officers or employees shall be required to execute, deliver or enter into, or perform any agreement, document or instrument (other than customary authorization and representation letters) with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (respect to the extent any provision creating such conflict was Financing that is not created in contemplation of contingent upon the Available Financing) or any Laws or (y) result in the contravention of, Closing or that would reasonably be expected effective prior to result the Closing (and no officers or employees that are not continuing in a violation such capacity after Closing shall be required to execute, deliver or breach ofenter into or perform any such agreement, document or a default under, any Contract instrument). To the extent that this Section 6.15(e) requires cooperation with respect to which Trimble or any of its Subsidiaries is a party the Purchaser’s obligations under the Debt Commitment Letter or relating to the extent not entered into Debt Financing, Sellers, the Companies or their respective Subsidiaries shall be deemed to have complied with this Section 6.15(e) for purposes of Article VII of this Agreement if Sellers, the Companies or their respective Subsidiaries have provided the Purchaser with the assistance required under this Section 6.15(e) with respect to the Debt Commitment Letter and the Debt Financing, in contemplation each case without giving effect to any Alternative Financing Commitment Letter or Alternative Financing. For the avoidance of doubt, the parties hereto acknowledge and agree that the provisions contained in this Section 7.15(d). Trimble hereby consents 6.15(e) represent the sole obligation of Sellers, the Companies and their respective Subsidiaries and their respective directors, officers or employees with respect to the reasonable use of its and its Subsidiaries’ trademarks and logos cooperation in connection with the Available Financing; providedarrangement of the Financing and no other provision of this Agreement (including the Exhibits and Schedules hereto) shall be deemed to expand or modify such obligations.
(f) The Purchaser shall promptly, howeverupon written request by Sellers, reimburse Sellers for all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by Sellers, the Companies and their respective Subsidiaries in connection with the cooperation of Sellers, the Companies and their respective Subsidiaries contemplated by Section 6.15(e) and shall indemnify and hold harmless Sellers, the Companies and their respective Subsidiaries and their respective representatives and Affiliates from and against any and all losses, damages, claims, costs or expenses (including reasonable and documented attorney’s fees and expenses) suffered or incurred by any of them in connection with the arrangement of the Financing and any information used in connection therewith (excluding any and all such losses, damages, claims, costs or expenses that such trademarks result or arise from bad faith, gross negligence or will misconduct on the part of any of Sellers, the Companies and logos are used solely in a manner their respective Subsidiaries and their respective representatives and Affiliates).
(g) The Purchaser acknowledges and agrees that obtaining the Financing is not intended a condition to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputationClosing.
Appears in 1 contract
Sources: Contribution and Equity Purchase Agreement (McAfee Corp.)
Financing. (a) Subject to the terms Each of Merger Sub and conditions of this Agreement, AGCO Parent shall use its their respective commercially reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pursuant take, or cause to Section 7.15(b)(A)) on the terms be taken, all actions and conditions set forth in the Commitment Letter (including any “flex” provisions in the Fee Letter) to do, or on such other terms cause to be done, all things necessary, proper or advisable to arrange, consummate and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Termsobtain, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to, debt or equity financing or some combination of debt and equity financing in an aggregate amount (after taking into consideration the funds otherwise expected to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letterbe available to Parent) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be is required to consummate the Available Offer, the Merger and the other transactions contemplated by this Agreement and to pay any fees and expenses payable by Parent, Merger Sub or the Company in connection therewith (the “Financing”).
(b) Parent shall (i) furnish the Company complete, correct and executed copies of any financing agreement entered into in accordance with this Section 6.13 (“Financing before Agreement”) promptly upon its execution, (ii) give the final day Company prompt written notice of any breach or threatened breach of which either Merger Sub or Parent is or becomes aware by any party of any Financing Agreements entered into or threatened termination thereof, and (iii) otherwise keep the Company reasonably informed in a timely manner of the Marketing Periodstatus of its efforts to arrange the Financing.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior to the ClosingAcceptance Time, Trimble Parent and Merger Sub shall use its reasonable best efforts obtain commitments from Persons represented by Affiliates of Parent (serving on Israeli Parent’s Board of Directors) to provide at least $5 million of equity financing to AGCOParent or Merger Sub for the Offer on terms at least as favorable to Parent or Merger Sub, as applicable, as those offered by any other arms-length provider of at least $5 million in equity financing for the Offer, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries subject to use their respective reasonable best efforts conditions, including without limitation, Parent’s or Merger Sub’s receipt (either directly or through its Affiliates) of a minimum of $19 million of additional financing plus any amounts, if any, necessary to providerefinance existing debt of Parent, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of Israeli Parent or the type contemplated by the Commitment Letter Company in connection with the Available Financing. Without limitation of the generality of the foregoingsuch additional financing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts acceptableness of AGCO and such additional financing being at the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO sole discretion of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputationParent.
Appears in 1 contract
Sources: Merger Agreement (Perseon Corp)
Financing. Unless otherwise approved in writing by the Company (a) Subject to which approval shall not be unreasonably withheld, conditioned or delayed), and except for any of the terms and conditions following actions that would not increase conditionality or impose any new obligation on the Company or Athena, reduce the PIPE Financing Amount or the subscription amount under any Subscription Agreement or reduce or impair the rights of this Athena or the third-party beneficiary rights of the Company under any Subscription Agreement, AGCO shall use its reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth in the Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO Athena shall not permit any amendment or modification to be made to, any waiver (in whole or in part) of, or provide consent to modify (including consent to terminate), any provision or remedy under, or any waiver replacements of, any of the Subscription Agreements, in each case, other than any provision under, the Commitment Letter assignment or the Fee Letter transfer contemplated therein or expressly permitted thereby (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such without any further amendment, modification or waiver (Ato such assignment or transfer provision) with respect to the Commitment Letter or the Fee Letter any amendment, modification or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing waiver that is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated solely ministerial in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash nature or otherwise in accordance with Section 7.15(b)(A))immaterial, or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financingand, in a manner each case, that woulddoes not affect any economic or any other material term, shall not require the prior written consent; provided, that, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification assignment or waiver not in violation of these clauses (A) and (B)transfer, the “Permitted Financing Terms”); providedinitial party to such Subscription Agreement remains bound by its obligations with respect thereto in the event that the transferee or assignee, that subject as applicable, does not comply with its obligations to compliance with consummate the other provisions purchase of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party theretoshares of Athena Common Stock contemplated thereby. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO Athena shall use its reasonable best efforts to (taking into account i) enforce the anticipated timing obligations of the Closing Date PIPE Investors under the Subscription Agreements and consummate the Marketing Period) to (A) maintain in effect purchases contemplated by the Commitment Letter in accordance with Subscription Agreements on the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consentset forth in the Subscription Agreements, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (Cii) satisfy all conditions to funding the PIPE Financing set forth in the Commitment Letter and such definitive agreements with respect thereto Subscription Agreements that are within its control andcontrol, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (Diii) enforce satisfy and comply with its rights obligations under the Commitment Letter and any definitive agreements with respect theretoSubscription Agreements. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO The Company shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its Representatives to, cooperate with Athena and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter its Representatives in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) matters specified in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsthis Section 7.17, including, without limitation, to satisfy all conditions to the PATRIOT ActPIPE Financing set forth in the Subscription Agreements that are within its control. If reasonably requested by the Company, includingAthena shall, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested it has such rights under the Subscription Agreement, waive any breach of any representation, warranty, covenant or agreement of the Subscription Agreement by AGCOany PIPE Investor to the extent necessary to cause the satisfaction of the conditions to closing of the PIPE Financing set forth in the Subscription Agreements and solely for the purpose of consummating the Closing, directing provided that (i) any such waiver may be subject to, and conditioned upon, the auditors Closing occurring and the substantially concurrent funding of such PIPE Financing, (ii) subject to, and condition upon, the Closing occurring substantially concurrent funding of the PIPE Financing, the Company also waives any such breach to the extent the Company is a third party beneficiary of the provision that was so breached (iii) any such waiver shall be subject to the rights of the placement agent, as applicable, under such Subscription Agreement with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputationwaiver.
Appears in 1 contract
Sources: Business Combination Agreement (Athena Technology Acquisition Corp.)
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO each of Parent and HospitalCo Parent shall use its reasonable best efforts to obtain arrange the Committed Debt Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth 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 LetterLetters) or on such and, other terms and conditions that are acceptable to AGCO so long than as such other terms and conditions constitute Permitted Financing Termsset forth in this Section 7.15, and AGCO shall not permit any amendment amendment, supplement or modification to be made to, or any waiver of any provision or remedy under, the Debt Commitment Letter Letters (including any replacement of all or the Fee Letter (any portion of any facilities or following entry into definitive documents relating commitments thereof described therein), if and to the Committed Financing, such definitive documents) if extent such amendment, modification supplement, modification, replacement or waiver (Ai) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Debt Financing (including by increasing changing the amount of fees to be paid or original issue discount unless except by operation of the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated “market flex” provisions contained in the Commitment Letter Fee Letters) such that Parent or such definitive documents HospitalCo Parent (other than in accordance with its terms or unless concurrently replaced as applicable) would not have sufficient cash proceeds to consummate the transactions contemplated by commitments from other financing sources this Agreement and the Separation Agreement on the Closing Date, and the payment of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A))the Required Amounts, or (Bii) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in receipt of any portion of the case of this subclause Debt Financing or (B), iii) would or would reasonably be expected to (xA) prevent or materially delay or prevent the Closing or (B) make the availability funding of the Committed Debt Financing on the Closing Date taking into account the expected timing (or satisfaction of the Closing Date, taking into account conditions to obtaining the expected timing of the Marketing Period, Debt Financing) less likely to occur or (yC) would or would reasonably be expected to adversely impact the ability of AGCO Parent or HospitalCo Parent, as applicable, to enforce its rights against the other parties to the Debt Commitment Letter Letters or the Definitive Agreements (as defined below), in any material respect (respect. Notwithstanding the terms of any such amendmentforegoing, modification Parent or waiver not HospitalCo Parent, as applicable, may amend, supplement or modify the Debt Commitment Letters as in violation of these clauses (A) and (B), effect at the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions date of this Section 7.15, AGCO may amend the Commitment Letter Agreement to add or such definitive documents to correct typographical errors, add additional replace lenders, arrangers and lead arrangers, bookrunners, syndication agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any similar entities party thereto. AGCO shall promptly deliver to Trimble copies who had not executed the Debt Commitment Letters as of any such amendment, modification or replacementthe date of this Agreement. For purposes of this Section 7.15 Agreement (other than with respect to any representations made by Parent, HospitalCo Parent or Merger Sub), (x) the terms “Debt Financing,” “Equity Financing” and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall be deemed to include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) applicable Financing Commitments as permitted by this Section 7.15(a) to may be amended, modified supplemented, modified, replaced or replaced waived pursuant to this Section 7.15 (including any Alternative Financing (as defined below)) and references to (y) the terms “Debt Commitment LetterLetters,” “Equity Commitment Letters” and “Financing Commitments” shall be deemed to include such document the applicable Financing Commitments as permitted by this Section 7.15(a) to may be amended, modified supplemented, modified, replaced or replacedwaived pursuant to this Section 7.15 and any commitment letters with respect to any Alternative Financing and any related fee letters.
(b) AGCO Each of Parent and HospitalCo Parent shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (Ai) maintain in effect the Debt Commitment Letter in accordance Letters pursuant to their respective terms (except for amendments, supplements, modifications, replacements or waivers not prohibited by Section 7.15(a)) until the transactions contemplated by this Agreement, including the Merger, are consummated on the Closing Date or the Definitive Agreements with the terms and subject respect to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consentsuch Debt Commitment Letters are entered into, (xii) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Debt Financing contemplated by the Commitment Letter on the respective terms and conditions (including any “market flex” provisions applicable thereto) contained in the respective Debt Commitment Letter Letters and Fee Letters (“Definitive Agreements”) or on other terms not less favorable to Parent or HospitalCo Parent (as applicable), than the respective terms and conditions (including the any “market flex” provisions included applicable thereto) contained in the respective Debt Commitment Letters and Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms)Letters, (Ciii) satisfy on a timely basis (taking into account the anticipated timing of the Marketing Period) or obtain the waiver of all conditions to funding in the Debt Commitment Letter and such definitive agreements with respect thereto Letters applicable to Parent or HospitalCo Parent that are within its control and, subject to satisfaction of all conditions to funding, to and consummate the Committed Debt Financing at or prior to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (Div) enforce its their rights under the Debt Commitment Letter and Letters in the event of a breach by any definitive agreements with respect party thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO Without limiting the generality of the foregoing, each of Parent or HospitalCo Parent (as applicable) shall give Trimble the Company reasonably prompt notice notice: (xi) of any breach or default (or any event or circumstance that, with or without notice, lapse of time or both, would reasonably be expected to give rise to any breach or default) by any party to the respective Debt Commitment Letter Letters or definitive agreements relating to the Committed Financing any respective Definitive Agreement of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, they become aware; (yii) of the receipt of any written notice or other communication, in each case written communication from any Committed Financing Source with respect to any actual or potential material threatened breach, material default, termination or repudiation by any party to the respective Debt Commitment Letter Letters or definitive agreements relating to the Committed Financing of any Definitive Agreement or any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing thereof and (ziii) if at any time for any reason AGCO Parent or HospitalCo Parent (as applicable) believes in good faith that it they will not be able to obtain all or any portion of the Committed Debt Financing on the terms and conditionsterms, in the manner or from the Committed Financing Sources sources contemplated by the respective Debt Commitment Letter Letters or definitive agreements relating 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 Committed Financing. As soon as reasonably practicable after Company copies of all Definitive Agreements related to the date Trimble delivers Debt Financing (including copies of any amendment to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) modification of the immediately preceding sentence; provided that AGCO shall 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 be required relate to share any information with Trimble that is subject to attorney-client the amount or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) conditionality of the second preceding sentence resulting in Financing).
(d) In the event any portion of the Committed Debt Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) 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 such portion is reasonably required to effect the Closing, AGCO HospitalCo Parent shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereofto, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For , 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 avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO same or any of its Affiliates to alternative sources (i) agree to, or accept, economic on terms that are materially and conditions not less favorable to AGCO, Parent or HospitalCo Parent (as determined applicable) than those contemplated in the reasonable judgment applicable Debt Commitment Letter and Fee Letter (including any “market flex” provisions contained in such Fee Letter), (ii) with conditions to the funding of AGCOsuch alternative financing not more onerous, taken as a whole, than the economic those conditions and terms contained in the Commitment Letter Debt Financing Commitments as of the 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 Fee Letter (assuming Separation Agreement on the application Closing Date, and the payment of the Required Amounts (such alternative financing, the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financingFinancing”). AGCO Parent or HospitalCo Parent (as applicable) shall reasonably promptly deliver to Trimble the Company true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) agreements pursuant to which any such alternative source Alternate Financing shall have committed be made available to provide 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 Alternative Financingsuch agreement may be redacted).
(de) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCOThe Company shall, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to its Affiliates to, use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, personnel and Representatives (including legal and accounting representatives) to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO 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 that 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) using reasonable best efforts to 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 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 Homecare 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 necessary 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 customarily required 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 financings 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 Available Financing. Without limitation extent such information or assistance relates to the business, financial performance or financial condition of the generality of Company and its Subsidiaries (including the foregoingHomecare Business and/or the Hospital Business) and rating agency presentations, such including business and financial projections reasonably requested by Parent or HospitalCo Parent;
(iv) using reasonable best efforts shall include:to provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders (including customary 10b-5 and material non-public information representations);
(iv) upon at the reasonable noticerequest of Parent or HospitalCo Parent, participation and subject to the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), using reasonable best efforts to file a Form 8-K with the SEC disclosing information identified by management and Representatives of Trimble, 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 Debt 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 Company, any of their respective Subsidiaries Affiliates or any of 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 expertiseexpertise available to participate) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, presentations, “road shows”, drafting sessions and sessions with the rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Debt Financing, at reasonable times and locations to be mutually agreed;
(iivii) delivery using reasonable best efforts to AGCO of reasonably cooperate with the Required Information and other financial and other pertinent information regarding the Business, Company Financing Sources’ and their respective Subsidiaries in the possession of Trimbleagents’ due diligence, the Company and their respective Subsidiaries and other assistance as may be including by granting reasonable access to documentation reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required Persons in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliantcapital markets transactions;
(iiiviii) using reasonable best efforts to the extent reasonably requested by AGCO, (A) assisting in the preparation of, cooperate with Parent and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputationHos
Appears in 1 contract
Sources: Agreement and Plan of Merger (Kindred Healthcare, Inc)
Financing. (a) Subject Buyer shall use, and shall cause its Affiliates and each of its and their respective Representatives to the terms and conditions of this Agreementuse, AGCO shall use its their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable to arrange, obtain and consummate the Committed Debt Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on upon the terms and subject only to the conditions (including, to the extent required, the full exercise of any “flex” provisions) expressly set forth in the Debt Commitment Letter Letters, including using reasonable best efforts (i) to maintain in force and effect the Debt Commitment Letters in accordance with the terms thereof until the consummation of the transactions contemplated hereby, (ii) to negotiate, enter into and deliver definitive agreements with respect to the Debt Financing (collectively, the “Debt Financing Agreements”) upon the terms and subject only to the conditions expressly set forth in the Debt Commitment Letters (including any applicable “flex” provisions provisions) and further subject to any amendments, modifications or supplements thereto, or replacements or waivers thereof, in each case, not prohibited by this Agreement, (iii) to satisfy on a timely basis (but in any event, at or prior to Closing) all conditions to the Fee Letter) or on such other terms and conditions funding of the full amount of the Debt Financing that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Termswithin Buyer’s control, and AGCO (iv) to enforce its rights under or with respect to the Debt Commitment Letters and the Debt Financing Agreements.
(b) Buyer shall not permit any amendment amendment, supplement or other modification to be made to, or grant any waiver of any provision terms under, the Debt Commitment Letter Letters, in each case without the prior written consent of the Company (not to be unreasonably withheld, conditioned, or the Fee Letter (or following entry into definitive documents relating to the Committed Financingdelayed), such definitive documents) if such amendment, supplement, or other modification or waiver would or would reasonably be expected to (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces reduce the aggregate amount of the Committed Debt Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputationoriginal
Appears in 1 contract
Financing. (a) Subject Buyer shall use its, and shall cause its controlled Affiliates to use their, reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate and obtain the Financing on the terms and subject only to the conditions (including the market “flex” provisions) set forth in the Commitment Papers contemporaneously with the Closing, including by using its reasonable best efforts to (i) maintain in effect the Commitment Papers, (ii) negotiate and enter into definitive agreements with respect to the Financing (the “Definitive Agreements”) consistent with the terms and conditions contained in the Commitment Papers and (iii) if all of this Agreementthe conditions to the Closing contained in Article VI are satisfied or waived (other than those conditions that by their terms are to be satisfied or waived at the Closing or will be satisfied or waived upon funding) and the Marketing Period has ended, AGCO satisfy on or prior to the Closing Date all conditions in the Commitment Papers and the Definitive Agreements and comply with its obligations thereunder. In the event that all conditions contained in the Commitment Papers or the Definitive Agreements (other than the consummation of the Transaction and other than those that by their nature are to be satisfied at the Closing) have been satisfied or waived, Buyer shall use its reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth in enforce its rights under the Commitment Letter (Papers, including any “flex” provisions in using reasonable best efforts to cause the Fee Letter) or on such other terms and conditions that are acceptable Lender Related Parties to AGCO so long as such other terms and conditions constitute Permitted Financing Termscomply with their respective obligations thereunder, and AGCO including to fund the Financing. Buyer shall not not, without the prior written consent of Seller, permit any amendment termination of or amendment, supplement or modification to be made to, or grant any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) Papers if such termination, amendment, supplement, modification or waiver would (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces reduce the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A))Financing, or (B) imposes impose new or additional conditions precedent to the availability of the Financing or otherwise expandsexpand, amends amend or modifies modify any of the conditions precedent to the Committed Financing, Financing in a manner that would, in the case of this subclause (B), would reasonably be expected to (x) prevent prevent, impede or materially delay the Closing or the availability funding of the Committed Financing on the Closing Date taking into account the expected timing of the Closing DateFinancing, taking into account the expected timing of the Marketing Period, or (yC) adversely impact the ability of AGCO Buyer to enforce its rights against the other parties to the Commitment Letter in any material respect Papers or (D) would otherwise reasonably be expected to prevent or impede or delay the terms funding of any such amendmentthe Financing, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance at Closing, Buyer may reduce the commitments under the Commitment Papers substantially contemporaneously with the payment of all amounts due at Closing to the extent Buyer is using funds other provisions than proceeds of this Section 7.15, AGCO may amend the Commitment Letter or Financing to make such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party theretopayments. AGCO Buyer shall promptly deliver to Trimble Seller true and complete copies of any such amendment, modification modification, supplement, consent or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, waiver to or under any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedPapers promptly upon execution thereof.
(b) AGCO Buyer shall use its keep Seller informed on a reasonably prompt basis and in reasonable best efforts (taking into account the anticipated timing detail of the Closing Date and status of its efforts to arrange the Marketing Period) to (A) maintain in effect Financing. Without limiting the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount generality of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto)foregoing, (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO Buyer shall give Trimble Seller prompt written notice of (xi) of any breach actual or default threatened breach, default, termination, cancellation or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of Papers and the receipt of any written notice or other communication, in each case written communication from any Committed Financing Source with respect to any actual or potential material breach, material default, termination termination, cancellation or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay ofPapers, or in any way limit, (ii) the availability occurrence of an event or development that could reasonably be expected to adversely affect the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able ability of Buyer to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating Closing Date to the Committed Financingextent necessary to fund the Closing Cash Consideration. As soon as reasonably practicable after the date Trimble Seller delivers to AGCO Buyer a written request, AGCO ▇▇▇▇▇ shall provide any information reasonably requested by Trimble Seller relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon If the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex any applicable market “flex” provisions) contemplated in by the Commitment Letter and Fee LetterPapers (other than solely as a result of Seller’s material breach of any covenant in this Section 5.22), and such portion is reasonably required to effect the Closing, AGCO Buyer shall (i) use its reasonable best efforts to arrange and obtain obtain, in replacement thereof alternative financing (the “Alternative Financing”) from alternative sources in an amount at least equal amount, when combined with cash on hand of Buyer or otherwise available to Buyer through its existing credit facilities, sufficient to consummate the unavailable portion thereof, Transaction with (a) terms (including market “flex” provisions) (taken as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions a whole) not materially less favorable to AGCO Buyer (or its Subsidiaries), as determined in the reasonable judgment of AGCO, Affiliates) than the terms set forth in the Commitment Papers, and (b) conditions (taken as a whole) not less favorable to Buyer (or its Affiliates) than the conditions set forth in the Commitment Letter Papers and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance promptly notify Seller of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO unavailability and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputationreason
Appears in 1 contract
Financing. (a) Subject Parent shall use reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary or advisable to obtain, no later than the Closing Date, the proceeds of the Debt Financing on the terms and conditions of this Agreementdescribed in the Commitment Letters (or on other terms that are not (1) less favorable to Parent than the terms and conditions (including any “market flex” provisions contained in the Debt Fee Letters) set forth in the applicable Commitment Letter and (2) Restricted Terms (clauses (1) and (2), AGCO shall use its the “Acceptable Debt Financing Terms”)), including using reasonable best efforts to obtain (i) maintain in effect and not cancel any commitments under the Committed Financing (taking into account any reductions thereof pursuant Commitment Letters in accordance with and subject to Section 7.15(b)(A)) on the terms and conditions set forth therein (it being understood that the Commitment Letters may be replaced or amended as provided below), (ii) negotiate, execute and deliver the Definitive Debt Financing Agreements that reflect the terms and conditions in the Commitment Letter (including any “flex” provisions in the Fee Letter) Letters or on such other terms solely to the extent they constitute Acceptable Debt Financing Terms and (iii) satisfy on a timely basis (or obtain a waiver of) all conditions in the Commitment Letters (other than those conditions that by their nature are acceptable to AGCO so long as be satisfied at the Closing, but subject to the satisfaction or waiver of such other terms conditions at the Closing) and conditions constitute Permitted the Definitive Debt Financing TermsAgreements applicable to Parent or its Affiliates that are within their control.
(b) Parent shall not, and AGCO shall cause its Affiliates not permit any amendment or modification to be made to, permit or consent to or agree to any amendment, restatement, replacement, supplement, termination or other modification or waiver of any provision or remedy under, the any Commitment Letter without the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or the Fee Letter (or following entry into definitive documents relating to the Committed Financingdelayed), such definitive documents) if such amendment, restatement, supplement, termination, modification or waiver would (Ai) with respect impose new or additional conditions precedent to the Commitment Letter initial funding of the Debt Financing, or expand upon or amend or modify, in each case, in any adverse manner, the existing conditions precedent to the initial funding of the Debt Financing, (ii) prevent or materially delay the availability at the Closing of all or a portion of the Debt Financing necessary to satisfy the Financing Amount (after taking into account the portion of the Debt Financing that remains available and all other sources of capital available to Parent) or the Fee Letter or such definitive documentsconsummation of the Transactions, as applicable, reduces (iii) reduce the aggregate amount of the Committed Debt Financing (including by increasing the amount of fees to be paid or original issue discount as compared to the fees and original issue discount contemplated by the Commitment Letters or Debt Fee Letters on the Closing Date unless the Committed amount of the Debt Financing is increased by a corresponding amount) below the amount or necessary to satisfy the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents Amount (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date after taking into account the expected timing portion of the Closing DateDebt Financing that remains available, taking into account the expected timing any available cash of the Marketing PeriodCompany and each of its Subsidiaries, or cash on hand and cash available from other funding sources), (yiv) adversely impact affect the ability of AGCO Parent to enforce its rights against under any Commitment Letter, or (v) otherwise impact or delay or adversely affect the ability of Parent to consummate the Transactions or the Debt Financing (clause (i) through clause (v), the “Restricted Terms”); provided that Parent may amend each Commitment Letter to add initial lenders, lead arrangers, bookrunners, syndication agents or other parties similar roles that had not executed such Commitment Letter as of the date of this Agreement. The syndication of any portion of the Debt Financing (and the implementation of “market flex” provisions) in accordance with either Commitment Letter shall not, and shall not be deemed to, violate Parent’s obligations under this Agreement. As promptly as practicable following execution thereof, Parent shall furnish to the Commitment Letter in any material respect (the terms Company a correct and executed copy of any such amendment, modification restatement, replacement, supplement, modification, waiver or waiver not in violation consent of these clauses (A) and (B)or relating to any Commitment Letter, the Debt Fee Letters and any other fee letters entered into in respect of the Debt Financing (which may be Customarily Redacted as if such letters were Debt Fee Letters).
(c) In the event that any portion of the Debt Financing in an amount required to satisfy the Financing Amount (after taking into account the portion of the Debt Financing that remains available and any available cash of the Company and each of its Subsidiaries, cash on hand and cash available from other funding sources) (i) becomes unavailable on the terms and conditions (including any “Permitted Financing Terms”); provided, that subject to compliance with market flex” provisions set forth in the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing Debt Fee Letters) contemplated by the Commitment Letter (Letters or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing any of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Debt Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Definitive Debt Financing TermsAgreements”), or (Cii) satisfy all conditions shall be withdrawn, repudiated, terminated or rescinded, regardless of the reason therefor (other than the right of Parent to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control andterminate this Agreement), subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior to the Closing Date, as applicable, including using its Parent will use reasonable best efforts to cause (x) obtain alternative debt financing (in an amount, when taken together with the lenders portion of the Debt Financing that remains available and any available cash of the Company and its Subsidiaries, is at least equal to the Financing Amount) from the same or other persons committing sources on terms and conditions that are not materially less favorable, when taken as a whole, to fund Parent (as reasonably determined by Parent in good faith) than those contained in any applicable Commitment Letter and Debt Fee Letter (including any “market flex” provisions set forth in the Committed Financing on the Closing Date Debt Fee Letters) (the “Committed Financing SourcesAlternative Debt Financing”) and (Dy) enforce its rights under promptly notify the Company of such unavailability and the reason therefor. For the purposes of this Agreement (other than as expressly provided otherwise and with respect the representations in this Agreement made by Parent that speak to the date of this Agreement), the term “Debt Financing” shall be deemed to include any Alternative Debt Financing arranged in compliance herewith, and the terms “Commitment Letters,” “Debt Fee Letters” and “Definitive Debt Financing Agreements” shall be deemed to include any commitment letter (or similar agreement), fee letters or definitive agreement with respect to any such Alternative Debt Financing; provided that, notwithstanding anything to the contrary herein, in no event shall any Alternative Debt Financing or amendment with respect to the Commitment Letter Letters be deemed to materially and any definitive agreements with respect thereto. Trimble acknowledges adversely expand the obligations set forth in this Section 6.3 of the Company and agrees that AGCO each of its Subsidiaries.
(d) Upon the reasonable request of the Company, Parent shall not be required keep the Company reasonably informed of the status of its efforts to consummate the Available Financing before Debt Financing, except to the final day extent such information would jeopardize any attorney-client privilege, attorney work-product protections or similar protections. Without limiting the generality of the Marketing Period.foregoing, Parent must give the Company prompt written notice (and in any event within two (2) Business Days):
(c) AGCO shall give Trimble prompt notice (xi) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing Letters of which AGCO Parent has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, knowledge; and
(yii) of the receipt by Parent or any of its officers of any written notice or other communication, in each case from any Committed Debt Financing Source with respect to any (1) actual breach (or potential material threatened breach), material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing Letters of any provisions of the Commitment Letter Letters; or definitive agreements relating (2) dispute or disagreement between or among any parties to the Committed Financing if such breachCommitment Letters with respect to the Commitment Letters that, defaultin the case of clauses (1) and (2), termination would reasonably be expected to delay or repudiation would result in a material delay of, or in any way limit, prevent the availability consummation of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Debt Financing on the terms Closing Date. Notwithstanding anything to the contrary, nothing in this Section 6.3(d) shall require Parent to take any action to the extent it would jeopardize any attorney-client privilege, attorney work-product protections or similar protections.
(e) Notwithstanding anything to the contrary, nothing in this Section 6.3 shall require, and conditionsin no event will the reasonable best efforts of Parent be deemed or construed to require, (i) funding of any equity financing, (ii) the incurrence of any debt financing other than the Debt Financing or any Alternative Debt Financing, (iii) the payment of fees in connection with the manner or from Debt Financing in excess of the Committed Financing Sources amounts contemplated by the Commitment Letter or definitive agreements relating to (iv) the Committed Financing. As soon as reasonably practicable after commencement of any litigation against any Debt Financing Source.
(f) From the date Trimble delivers of this Agreement until the earlier of the Closing Date and the valid termination of this Agreement in accordance with Section 8, the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to AGCO a written requestprovide, AGCO and shall provide any information cause its Representatives to use their commercially reasonable efforts to provide, cooperation reasonably requested by Trimble relating to any circumstance referred to Parent in clause (x)connection with the obtaining, (y) or (z) arrangement and consummation of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its Debt Financing, such reasonable best efforts to disclose such information include, but not be limited to:
(i) causing appropriate members of the Company’s senior management team to participate in a way that would not waive such privilege. Upon the occurrence reasonable and limited number of any circumstance referred to in clause meetings (xwhich may be virtual), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b))conference calls, or if any portion of the Committed Financing otherwise becomes unavailable on the terms presentations and conditions (including the flex provisions) contemplated in the Commitment Letter due diligence sessions with arrangers, accountants and/or potential lenders, at reasonable times and Fee Letterlocations mutually agreed, and such portion is reasonably required upon reasonable notice;
(ii) assisting Parent with the preparation of customary bank information memoranda, investor, lender presentations and similar customary documents for use in connection with the Debt Financing;
(iii) furnishing to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter Parent and the Fee Letter (including the flex provisions therein) and Debt Financing Sources, as promptly as reasonably practicable following practicable, (x) the occurrence financial statements referenced in clause (c) of such event. For the avoidance paragraph 9 of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as Exhibit C to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the each Commitment Letter and (y) solely with respect to financial information derived from the Fee Letter (assuming Company’s historical books and records, information reasonably requested in connection with the application preparation of the “market flex” provisionspro forma financial statements required by clause (d) or of paragraph 9 of Exhibit C to each Commitment Letter;
(iiiv) seek assisting Parent in connection with the preparation of (and executing and delivering as of the Closing Date) any equity investment or any offering, placement, sale or closing documents and other issuance of any equity securities (it being understood and agreed that any Alternative definitive financing documents with respect to the Debt Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters credit agreements, amendments, joinders, currency or (subject interest rate hedging arrangements, guarantees, pledge agreements, security agreements, mortgages, deeds of trust and other security documents and other certificates, documents and instruments relating to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior guarantees, the pledge of collateral and other matters ancillary to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause Debt Financing as may be required in connection with the Debt Financing or the Commitment Letters as may be reasonably requested by ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts otherwise necessary to cause its facilitate the pledging of collateral and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings the granting of security interests in respect of the type contemplated by Debt Financing on the Commitment Letter in connection with the Available Financing. Without limitation Closing Date, including a certificate of a financial officer of the generality Company with respect to solvency matters), it being understood that any such documents will not be recorded or take effect until the Effective Time;
(v) assisting in facilitating the pledging, granting and perfection of collateral and the granting of security interests, mortgages, deeds of trust and guarantees in respect of the foregoing, such reasonable best efforts shall include:Debt Financing (including to deliver any original stock certificates and related powers and any original promissory notes and related powers and assisting with regard to obtaining title insurance policies for any mortgages or deeds of trust);
(ivi) upon reasonable notice, participation by management providing customary authorization letters to the Debt Financing Sources authorizing the distribution of information to prospective lenders or investors and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in containing a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with representation to the marketing efforts of AGCO and the Debt Financing Sources, in each case, in connection with including that the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO public side versions of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar such documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does do not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of about the Company or any of its Subsidiaries under any such document shall be effective until or their securities and as to the Closing other than accuracy of the information contained in the case of the authorization disclosure and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect marketing materials related to the BusinessDebt Financing;
(ivvii) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
at least ten (v) no less than four (410) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources providing all documentation and other information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and each of its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under the Debt Financing Sources in connection with Debt Financing to comply with applicable “know your customer” and anti-money laundering rules and regulationsregulations (including the USA PATRIOT Act and, includingto the extent applicable, without limitationcustomary beneficial ownership certifications, and the PATRIOT Act, including, if requirements of 31 C.F.R. §1010.230) and that has been requested of the Company qualifies as a “legal entity customer” under by or on behalf of Parent at least fifteen (15) Business Days prior to the Beneficial Ownership Regulation, a Beneficial Ownership CertificationClosing Date; and
(viviii) assisting, to the extent reasonably requested by AGCOcustomary and reasonable, directing the auditors with respect to the Business to provide access to information reasonably necessary to complete any inventory appraisals and field examinations required by the Debt Financing;
(ix) taking all corporate and other customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are includedactions, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required Closing, reasonably requested by Parent to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to permit the extent any provision creating such conflict was not created in contemplation consummation of the Available Debt Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputation.
Appears in 1 contract
Financing. (a) Subject to the terms Each of Parent and conditions of this AgreementMerger Sub shall, AGCO and shall cause its Affiliates to, use its their respective commercially reasonable best efforts to arrange and obtain the Committed proceeds of the Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth described in the Financing Commitments, including: (i) maintaining in effect the Financing Commitments, (ii) entering into definitive agreements with respect to the Debt Commitment Letter Letters on the terms and conditions contained in the Financing Commitments, which agreements shall be in effect no later than the Closing, (including iii) satisfying, or causing their Representatives to satisfy, on a timely basis all conditions applicable to Parent, Merger Sub or their respective Representatives in the Financing Commitments (or definitive agreements entered into with respect to the Debt Commitment Letters), (iv) complying with any “flex” provisions contemplated by the Debt Commitment Letters in the Fee Letterevent such “flex” provisions are exercised in accordance with the terms thereof and (v) enforcing its rights under the Financing Commitments in the event of a breach or on such other terms and conditions anticipated breach by the Debt Commitment Parties or the Investors that are acceptable materially impedes or delays (or could reasonably be expected to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO materially impede or delay) the Closing.
(b) Neither Parent nor its Affiliates shall not permit agree to any amendment amendments or modification to be made modifications to, or grant any waiver waivers of, any condition or other provision under the Financing Commitments without the prior written consent of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) Company if such amendmentamendments, modification modifications or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces waivers would reduce the aggregate amount of the Committed Financing (including by increasing changing the amount of fees to be paid or original issue discount unless of the Committed Debt Financing), other than such reduction in an amount which would not cause the remaining amount of the Financing is increased by a corresponding amount to be insufficient to consummate the Transactions (including the payment of the aggregate Per Share Merger Consideration pursuant to Section 1.3(a) and any amounts payable pursuant to Section 1.5, and the payment of all associated costs and expenses of the Transactions (including any repayment or refinancing of indebtedness of Parent, Merger Sub or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated Company required in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(Aconnection therewith)), or (B) imposes impose new or additional conditions or otherwise expandsexpand, amends amend or modifies modify any of the conditions to under the Committed Financing, in a manner Financing Commitments that would, in the case of this subclause (B), could be reasonably be expected likely to (xi) prevent or prevent, materially delay or impair the Closing or ability of Parent to consummate the availability of Merger and the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, other Transactions or (yii) materially adversely impact the ability of AGCO Parent or Merger Sub to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”)Commitments; provided, that subject to compliance with for the other provisions avoidance of this Section 7.15doubt, AGCO Parent may amend the Debt Financing Commitment Letter or such definitive documents solely to correct typographical errors, add additional lenders, arrangers and lead arrangers, bookrunners, syndication agents or reallocate commitments similar entities who had not executed the Debt Commitment Letters as of the date hereof. Parent shall not release or assign or reassign titles or roles toconsent to the termination of the obligations of the lenders under the Debt Commitment Letters, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies except for (i) assignments and replacements of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and an individual lender under the definitions terms of, and references toonly in connection with, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing syndication of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject Debt Financing pursuant to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, Debt Commitment Letters or (xii) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount replacements of the Committed Financing under the Debt Commitment Letter (or definitive Letters with alternative financing documents related theretocommitments pursuant to Section 4.13(c), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to In the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith event that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, (x) becomes unavailable or (y) could reasonably be expected to become unavailable in the manner or from the Committed sources contemplated in the Financing Sources contemplated by Commitments, (i) Parent shall promptly notify the Commitment Letter or definitive agreements relating to Company and (ii) in the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause case of subclause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO Parent and Merger Sub shall, and shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used cause its Affiliates to, use their respective commercially reasonable best efforts to disclose such information arrange and obtain, and to negotiate and enter into financing commitments (if applicable) and definitive agreements with respect to, alternative financing from alternative financial institutions in a way that would not waive such privilege. Upon an amount sufficient to consummate the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the Transactions upon terms and conditions (including the flex provisionspricing) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable favorable, taken as a whole, to AGCO (or its Subsidiaries), as determined Parent and Merger Sub than those in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and Financing Commitments as promptly as reasonably practicable following the occurrence of such event. For In the avoidance of doubtevent Parent obtains financing commitments with respect to alternative financing, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms the term “Debt Commitment Letters” as used herein shall be deemed to include the Debt Commitment Letters that are materially less favorable to AGCO, as determined not so superseded at the time in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter question and the Fee Letter (assuming alternative financing commitments to the application of the “market flex” provisions) or extent then in effect, (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing the term “Debt Financing” as used herein shall be permitted to be in mean the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type debt financing contemplated by the Debt Commitment Letter in connection with Letters as modified pursuant to the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
foregoing clause (i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) the term “Debt Commitment Parties” as used herein shall also mean the entities providing such alternative debt financing commitments. The definitive agreements entered into pursuant to the extent reasonably requested by AGCO, (Athis Section 4.13(c) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (xSection 4.13(a) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters are referred to in clause (ii) abovethis Agreement, and (y) collectively, as the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available “Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputationAgreements.”
Appears in 1 contract
Financing. (a) Subject Each of the Equity Investor, Parent and Acquisition Sub shall take or cause to be taken, and shall cause their respective Affiliates and its and their respective Representatives 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 Financing at or prior to the Closing on the terms and subject to the conditions set forth in the Financing Commitments (including any “flex” provisions), including executing and delivering all such documents and instruments as may be reasonably required thereunder and:
(i) complying with and maintaining in full force and effect the Financing and the Financing Commitments (and, once entered into, the Financing Agreements) in accordance with the terms and conditions of this Agreement, AGCO shall use its reasonable best efforts thereof and negotiating and entering into definitive financing agreements with respect to obtain the Committed Debt Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth in the Debt Commitment Letter Letters (including any “flex” provisions in provisions) and containing no (I) conditions to the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, consummation of all or any waiver portion of any provision under, the Debt Financing other than the conditions set forth in Exhibit E to the Bank Debt Commitment Letter or Exhibit B to the Fee Letter Margin Loan Commitment Letter, as the case may be, in each case, as in effect on the date hereof, or (II) provisions that could reasonably be expected to prevent, impede, delay or adversely affect the availability of any of the Debt Financing or the consummation of the Merger and the other transactions contemplated by this Agreement (such definitive agreements, the “Financing Agreements”) so that the Financing Agreements are in full force and effect no later than the Closing;
(ii) satisfying, or obtaining the waiver of, as promptly as practicable and on a timely basis (and in any event, no later than the Closing) all conditions to the Debt Financing contemplated by the Debt Commitment Letters and Financing Agreements that are within its or their control, including, without limitation:
(A) on or prior to the Closing Date, transferring Tesla Shares to the Margin Loan Borrower and causing the Margin Loan Borrower to credit to collateral accounts pledged to the applicable Debt Financing Sources in respect of the Margin Loan Financing and held through the facilities of DTC, in each case, sufficient Tesla Shares, which shall be free from all transfer restrictions and restrictive conditions (other than permitted restrictions contemplated under the Financing Documents in respect of the Margin Loan Financing), to cause the LTV Ratio (as defined in the Margin Loan Commitment Letter) not to exceed 20% as of the Closing Date;
(B) ensuring the absence of (1) any default or event of default (or following entry any equivalent term) under the Financing Agreements in respect of the Margin Loan Financing, or (2) any Potential Adjustment Event or Mandatory Prepayment Event (in each case, under and as defined in the Margin Loan Commitment Letter);
(C) (x) maintaining the Margin Loan Borrower as a wholly owned subsidiary of Parent and ▇▇▇▇ ▇▇▇▇, and (y) causing the organizational documents of the Margin Loan Borrower not to contain, and causing the Margin Loan Borrower not to enter into definitive documents relating any Contract, that would (1) impede or prevent the Margin Loan Borrower or any of its Affiliates from enforcing or the Margin Loan Borrower’s rights in respect of the Debt Financing Sources under the Margin Loan Commitment Letter or any Financing Agreement in respect thereof or (2) impede or prevent the Margin Loan Borrower or any of its Affiliates from applying the proceeds of the loans to pay any Funding Obligations; and
(D) causing ▇▇▇▇ ▇▇▇▇ to (1) fully and unconditionally guarantee all obligations of the Margin Loan Borrower under the Margin Loan Financing to the Committed Financingextent required to consummate the Margin Loan Financing and (2) at all times through and including the Closing Date to own (beneficially and of record), such definitive documentsdirectly or indirectly, all of the outstanding equity interests of, and Control, the Margin Loan Borrower;
(iii) accepting (and complying with) to the fullest extent all “flex” provisions contemplated by the Debt Commitment Letters;
(iv) causing the Financing Sources to fund the Financing no later than the Closing (including by enforcing its rights under the Debt Commitment Letters and/or Financing Agreements, as applicable).
(b) None of the Equity Investor, Parent, Acquisition Sub or the Margin Loan Borrower or any of their respective Affiliates shall agree to or permit any amendment, supplement, modification or replacement of, or grant any waiver of, any condition, remedy or other provision under any Financing Commitment or Financing Agreement, or permit any Financing Agreement to contain any provision, without the prior written consent of the Company, if such amendment, modification supplement, modification, replacement, waiver or waiver provision would or would reasonably be expected to (Ai) with respect reduce (or would reasonably be expected to have the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces effect of reducing) the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made cash proceeds available to fund such fees or original issue discounttherefrom) from that contemplated in by the Commitment Letter or such definitive documents Financing Commitments delivered as of the date hereof, (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (Bii) imposes impose new or additional conditions or contingencies to the Financing or otherwise expandsexpand, amends amend or modifies modify any of the existing conditions to the Committed receipt of the Financing, or otherwise add, expand, amend or modify any other provision of, or remedies under, the Financing Commitments as in effect on the date hereof, in a manner that would, in the case of this subclause (B), would reasonably be expected to delay, impede or prevent the consummation or funding of the Financing (xor satisfaction of the conditions to obtaining any portion of the Financing) prevent or materially delay at the Closing or impair the ability or likelihood of the Closing or impair the ability of Parent and/or Acquisition Sub to timely consummate the Merger and the other transactions contemplated by this Agreement, (iii) make it less likely that any portion of the Financing would be funded (including by making the satisfaction of the conditions to obtaining any portion of the Financing less likely to occur) or otherwise prevent, impede or delay or impair the availability of any of the Committed Financing on or impair the Closing Date taking into account the expected timing ability or likelihood of the Closing Dateor Parent and/or Acquisition Sub to timely consummate the transactions contemplated by this Agreement (including by requiring any additional filings, taking into account the expected timing consents or approvals of the Marketing Period, any Governmental Authority) or (yiv) adversely impact the ability of AGCO Parent, Acquisition Sub or the Margin Loan Borrower, or any of their respective Affiliates, to enforce its their respective rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification Financing Commitments or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputation
Appears in 1 contract
Sources: Merger Agreement
Financing. (a) Subject to During the terms and conditions of this Agreement, AGCO shall use its reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth in the Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Pre-Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereoflimitations set forth below, provided thatand unless otherwise agreed by Buyer, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with Seller will instruct the Committed Financing, the “Available Financing”) and thereby reduce the amount management of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on handPlastics Business to, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior to the Closing Date, as applicable, including using its will use reasonable best efforts to cause the lenders Transferred Entities and the their respective accountants, legal counsel and other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) advisors and (D) enforce its rights under the Commitment Letter and any definitive agreements representatives to, cooperate with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon Buyer as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) Buyer and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to is customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Debt Commitment Letter Letters, and at Buyer’s sole expense, in connection with Buyer’s arrangement of, and obtaining the Available Financing. Without limitation proceeds of, Debt Financing (including, for purposes of this Section 6.10(a) an offering of debt securities of the generality type contemplated by the Debt Commitment Letters); provided, however, that such cooperation shall not be required to the extent it would: (i) require (A) the entry by Seller or any of its Affiliates (other than the Transferred Entities) into any agreement or instrument (whether or not conditioned on the Closing), (B) the entry by any Transferred Entity into any agreement the effectiveness of which is, or any of such Transferred Entity’s obligations thereunder are, not conditioned on the Closing (other than customary authorization letters in connection with any syndication materials related to the Debt Financing) or (C) any Transferred Entity or its pre-Closing directors, officers, managers, general partners or employees to execute, deliver or enter into, approve or perform any agreement, document or instrument with respect to the Debt Financing (other than customary authorization letters in connection with any syndication materials related to the Debt Financing), (ii) unreasonably interfere with the normal operations of Seller or any of its Subsidiaries (including the Transferred Entities), or the Plastics Business, (iii) include any actions that would reasonably be expected to (A) result in a violation of any Contract (including the Existing Credit Facilities) or confidentiality agreement or any Law, or the loss of any legal or other privilege, or (B) cause any representation, warranty, covenant or other obligation of Seller in the Transaction Agreements to be breached or any Closing Condition to fail to be satisfied, (iv) involve approaching any third parties prior to Closing to discuss agreements limiting the rights of such third parties, (v) involve consenting to the pre filing of UCC-1s or any other grant of Liens or other encumbrances prior to the Closing, (vi) require the giving of representations or warranties to any third parties (other than pursuant to customary authorization letters in connection with any syndication materials related to the Debt Financing) or the indemnification thereof, (vii) require the waiver or amendment of any terms of this Agreement or the payment of any fees or expenses for which Seller has not received prior reimbursement or the incurrence of any liabilities whatsoever prior to the Closing, (viii) cause any director, officer or employee of Seller or any of the foregoingTransferred Entities to incur any personal liability (including that none of the board of directors of Seller or the Transferred Entities shall be required to enter into any resolutions or take any similar action approving the Financing until the Closing has occurred or is to occur concurrently with such action), (ix) require the preparation or delivery of any projections or pro forma financial information, (x) require the preparation or delivery of (A) any audited financial statements or (B) except to the extent required by clause (C) of the next sentence, any unaudited financial statements, in each case in a form or subject to a standard different than those provided to Buyer on or prior to the Agreement Date or (xi) require delivery of any legal opinions. Subject to the foregoing limitations, such cooperation will include using reasonable best efforts shall include:
to (iA) upon reasonable notice, make appropriate officers of the Transferred Entities available for participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with roadshows, and rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
agency presentations; (iiB) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO assist in the preparation of a customary bank information memorandum (including, to the extent necessary, additional bank information memoranda that do not contain material non-public information), offering memorandum, lender presentation, investor presentation, marketing materials and similar marketing and syndication documents, customary materials for rating agency presentations, and customary authorization letters (and execute such authorization letters); (C) prepare and furnish Buyer and the Lenders the Required Bank Information; (D) cause the independent auditors of the Plastics Business to provide, consistent with customary practice, customary auditors consents and customary comfort letters (including “negative assurance” comfort and change period comfort) with respect to financial information relating to the Transferred Entities and their Subsidiaries as reasonably requested by Buyer and necessary or customary for financings similar to the Debt Financing (including any offering documents, or private placement memorandaof debt securities pursuant to Rule 144A under the Securities Act); (E) assist reasonably with the preparation of definitive financing documentation and the schedules and exhibits thereto, prospectusesin each case, bank information memoranda customarily required to be delivered under such definitive financing documentation; (F) facilitate the pledging from and similar documents after the Closing of collateral for the Debt Financing (including delivery of original stock certificates and original stock powers of the Transferred Entities to the extent required on the Closing Date in connection with the Debt Financing); (G) cooperate with Buyer in obtaining customary appraisals and field exams required in connection with the Available Debt Financing (or upon reasonable prior notice during normal business hours and in completing any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents borrowing base certificate required in connection with arranging the Available Debt Financing, including permitting prospective lenders or investors involved in the Debt Financing to evaluate the Transferred Entities’ inventory, current assets, cash management and updating any Required Information provided to AGCO as may be necessary to consummate accounting systems, policies and procedures relating thereto for the Available Financing purpose of establishing collateral arrangements (including conducting field exams, the commercial finance examinations and for such Required Information to remain Compliant;
(iiiinventory, equipment and real property appraisals) and conduct other customary collateral-related diligence, in each case to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates necessary or documents; provided, however, that (x) no obligation advisable to obtain any portion of the Company or any Debt Financing consisting of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, an asset-based credit facility; and (yH) provide to Buyer and the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and Lenders at least three (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (43) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably extent requested in writing by the Financing Sources at least six eight (6) 8) Business Days prior to the Closing Date about Date, (1) all documentation and other information regarding the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is Transferred Entities required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, including the PATRIOT Act, including, and (2) if the Company qualifies Transferred Entities qualify as a “legal entity customercustomers” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
information regarding the Transferred Entities (vi) to but not, for the extent reasonably requested by AGCOavoidance of doubt, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble regarding Seller or any of its Subsidiaries is other than the Transferred Entities, or the direct or indirect ownership or owners of the Transferred Equity Interests from and after the Closing) necessary to complete a party Beneficial Ownership Certification with respect to the extent not entered into in contemplation Transferred Entities. Buyer agrees that the effectiveness of any documents executed by or on behalf of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos Transferred Entities in connection with the Available Debt Financing shall be subject to, and shall not be effective until, the consummation of the Closing, and that in no event shall Seller or any of its Affiliates (other than the Transferred Entities) be required to execute or deliver any documents or take or approve any other corporate action in connection with the Debt Financing (other than as expressly provided by Section 6.11). All non-public or otherwise confidential information regarding Seller or any of the Transferred Entities obtained by Buyer pursuant to this Section 6.10(a) shall be kept confidential in accordance with the Confidentiality Agreement, except that Buyer shall be permitted to disclose such information (a) to rating agencies, the Lenders and potential Lenders, participants, prospective participants, hedging counterparties or prospective hedging counterparties in accordance with the terms of the Debt Commitment Letters, subject to the acknowledgment and agreement by such recipient that such information is being disseminated on a confidential basis and that such recipient shall not disclose such information to any other Person, subject only to customary exceptions in no event more extensive than those set forth in the confidentiality provisions of the Debt Commitment Letters as in effect as of the date hereof (including, without limitation, as agreed in any confidential information memorandum or other marketing materials, which may be by “click-through” agreement or other affirmative action on the part of the recipient to access such information) in accordance with standard syndication processes or customary market standards for dissemination of such type of information and (b) in any offering memorandum, provided, in the case of this clause (b) that (i) Buyer provides to Seller a draft of such offering memorandum reasonably in advance of the distribution thereof, (ii) confidential information of the type included in such draft offering memorandum is customarily disclosed in offering memoranda for offerings of debt securities pursuant to Rule 144A of a type similar to that being arranged by Buyer and (iii) to the extent Seller determines that it is necessary or desirable for Seller (or its Affiliates (including, following consummation of the Mergers, the Parent Group)) to file a Current Report on Form 8-K pursuant to the Securities Exchange Act of 1934, as amended, that contains material non-public information with respect to the Transferred Entities contained in any such offering memorandum, Purchaser shall give Seller (or its Affiliate (including, following consummation of the Mergers, the Parent Group)) an opportunity to file such Current Report on Form 8-K before Buyer distributes such offering memorandum. As a condition to Seller’s obligations pursuant to this Section 6.10, Buyer shall promptly, upon request by Seller, reimburse Seller for all reasonable out-of-pocket costs and expenses (including reasonable attorney’s fees and expenses and disbursements) incurred by Seller or any of the Transferred Entities in connection with the cooperation contemplated by this Section 6.10 and shall indemnify and hold harmless Seller, its Affiliates and their respective Representatives for and against any and all Losses suffered or incurred by them in connection with the arrangement of the Debt Financing, any action taken by them pursuant to this Section 6.10 and any information utilized in connection therewith (other than information provided by the Seller or any of its Affiliates). Seller consents to the customary and reasonable use of the logos in respect of the Plastics Business solely in connection with any Debt Financing; provided, however, provided that such trademarks and logos are used solely in a manner that is not intended to nor intended, or reasonably likely likely, to harm or disparage Trimble Seller or any of its Subsidiaries or Affiliates or the reputationreputation or goodwill of Seller or any of its Subsidiaries or Affiliates.
(b) Buyer shall not permit any assignment, amendment or modification to be made to, or any waiver of any provision or remedy under, any Commitment Letter, in each case without obtaining Seller’s prior written consent if such assignment, amendment, modification or waiver (i) reduces the aggregate amount of the Debt Financing to an amount such that the Closing could not be consummated without a corresponding increase in the Equity Financing, (ii) reduces the aggregate amount of the Equity Financing, (iii) imposes any additional (or adversely modifies any existing) condition precedent to the availability of the Financing, (iv) adversely impacts the ability of Buyer to enforce its rights against the other parties to the Commitment Letters or (v) would otherwise reasonably be expected to prevent, impede or delay the funding of the Financing on the Closing Date or the consummation of the transactions contemplated by this Agreement; provided that Buyer shall be permitted to amend, restate, supplement or otherwise modify the Debt Commitment Letter to add lenders, arrangers, book-runners, syndication and documentation agents or similar entities who have not executed the Debt Commitment Letter as of the Agreement Date, subject to the limitations set forth in this Section 6.10(b). In addition to the foregoing, Buyer shall not release or consent to the termination of any Debt Commitment Letter or of any Lender except (i) for replacements of Lenders in accordance with the last paragraph of Section 1 of the Debt Commitment Letters as in effect as of the date hereof, (ii) for replacements of any Debt Commitment Letter with alternative financing in accordance with Section 6.10(e) or (iii) with Seller’s prior written consent.
(c) Buyer shall use reasonable best efforts to take all actions and do all things necessary, proper or advisable to obtain the Equity Financing, including by using reasonable best efforts to (i) maintain in effect the Equity Commitment Letters, (ii) ensure the accuracy of all representations and warranties of Buyer, if any, set forth in the Equity Commitment Letters, (iii) comply with its obligations under the Equity Commitment Letters, (iv) satisfy on a timely basis all conditions applicable to Buyer in the Equity Commitment Letters that are within its control, (v) enforce its rights under the Equity Commitment Letters and (vi) consummate the Equity Financing at the Closing when required pursuant to the terms of the Equity Commitment Letters, including by causing the Equity Investor to fund the Equity Financing at the Closing when required pursuant to the terms of the Equity Commitment Letters.
(d) Buyer shall use its reasonable best efforts to arrange the Debt Financing and obtain the financing contemplated thereby as promptly as practicable on the terms and conditions described in each Debt Commitment Letter, including by using its reasonable best efforts to (i) maintain in effect each Debt Commitment Letter, (ii) comply with its obligations under each Debt Commitment Letter, (iii) as promptly as practicable negotiate, execute and deliver definitive agreements with respect to each Debt Commitment Letter on the terms and conditions contained therein, (iv) satisfy on a timely basis all conditions and obligations applicable to Buyer in each Debt Commitment Letter and such definitive agreements that are within its control, (v) enforce its rights under each Debt Commitment Letter and such definitive agreements and (vi) upon satisfaction or waiver of the conditions set forth in Section 11.02 and in the Debt Commitment Letters (other than those conditions that, by their terms, are to be satisfied at Closing), consummate the Debt Financing at the Closing (which, for the avoidance of doubt, shall include agreeing to consummate the Debt Financing even if any flex rights are exercised to their maximum extent).
(e) If any portion of the Debt Financing becomes unavailable on the terms (including any flex rights) and conditions contemplated in the Debt Commitment Letters, Buyer shall use reasonable best efforts to obtain, as promptly as practicable following the occurrence of such event, (i) alternative financing for any such portion from alternative sources and (ii) one or more new Debt Commitment Letters and new definitive agreements with respect to such alternative financing that provides for financing (A) not imposing any new or additional condition or otherwise expanding any condition to draw and other terms that would reasonably be expected to affect the availability thereof at Closing and (B) in an amount that is sufficient, when added to any portion of the Financing that is available, to pay in cash all of the Required Amount. Buyer shall promptly provide Seller with a copy of any new Debt Commitment Letters and any fee letter (as redacted
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Financing. (a) Subject to the terms Buyer shall, and conditions of this Agreementshall cause its Affiliates to, AGCO shall use its commercially reasonable best efforts to obtain take, or cause to be taken, all appropriate action, do, or cause to be done, all things necessary, proper or advisable under applicable Laws, and to execute and deliver, or cause to be executed and delivered, such instruments and documents as may be required, to arrange the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) as promptly as reasonably practicable on the terms and conditions set forth in the Commitment Letter (including any the “market flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (Aprovisions) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject only to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, contained in the case of each of clauses Financing Commitments, including to (x), (yi) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing on the terms (including the “market flex” provisions) and subject only to the conditions contained in the Financing Commitments or on other terms acceptable to Buyer so long as such definitive agreements (A) do not contain any additional or modified conditions or other contingencies to the funding of the Financing than those contained in the Financing Commitments as of the date of this Agreement, (B) are in a form that is otherwise not reasonably likely to impair or delay the funding of the Financing or the Principal Closing and (C) do not (I) materially increase the aggregate amount of Financing or (II) reduce the aggregate amount of the Financing set forth in the Financing Commitments as of the date of this Agreement, (ii) satisfy, and cause its Affiliates to satisfy, on a timely basis all conditions applicable to Buyer or its Affiliates contained in the Financing Commitments and (iii) consummate the Financing contemplated by the Commitment Letter Financing Commitments at the Principal Closing. Buyer shall, and shall cause its Affiliates to, refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any of the conditions contained in the Financing Commitments or in any definitive agreement related to the Financing.
(b) For the avoidance of doubt and notwithstanding anything to the contrary in this Section 6.06, Buyer acknowledges and agrees that its obligation to consummate the transactions contemplated by this Agreement on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all the conditions to funding, to consummate set forth herein are not conditioned upon the Committed Financing at availability or prior to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day consummation of the Marketing PeriodFinancing, the availability of any replacement commitments or receipt of the proceeds therefrom.
(c) AGCO Buyer shall give Trimble prompt notice (x) not agree to or permit any amendment, supplement or other modification of, or waive any of its rights under, any breach Financing Commitments or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge without Seller’s prior written consent (such consent not to be unreasonably conditioned, delayed or withheld), except that Buyer may amend, supplement or otherwise modify the Financing Commitments for the Financing if such breach amendment, supplement or default would result in a material delay of, other modification (A) does not contain additional or in any way limit, modified conditions or other contingencies to the availability funding of the Committed FinancingFinancing relative to those contained in Financing Commitments for the Financing as in effect on the date of this Agreement, (yB) is otherwise not reasonably likely to impair or delay the funding of the receipt Financing or the Principal Closing (it being understood that, subject to the requirements of any written notice this clause (c), such amendment, supplement or other communication, in each case from any Committed modification of the Financing Source Commitments may provide for the assignment of a portion of the Financing Commitment to additional agents or arrangers and grant such Persons approval rights with respect to any actual certain matters as are customarily granted to additional agents or potential material breach, material default, termination arrangers) and (C) do not (I) materially increase the aggregate amount of Financing or repudiation by any party to (II) reduce the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions aggregate amount of the Commitment Letter or definitive agreements relating to Financing set forth in the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability Commitments as of the Committed Financing and date of this Agreement.
(zd) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or If any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex “market flex” provisions) contemplated contained in the Commitment Letter and Fee LetterFinancing Commitments, Buyer shall promptly notify Seller, and such portion is reasonably required to effect the Closing, AGCO Buyer shall use its commercially reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereofobtain, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic replacement commitments on terms that are materially less favorable will enable Buyer to AGCO, as determined in consummate the reasonable judgment of AGCO, than transactions contemplated by this Agreement and which will not be reasonably likely to impair or delay the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application funding of the “market flex” provisions) Financing or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing)Principal Closing. AGCO Buyer shall deliver to Trimble true Seller complete and complete correct copies of all written agreementsamendments, arrangements supplements, other modifications or contracts (including any side letters or (subject to customary redactions) fee letters) agreements pursuant to which any amended, supplemented, modified or replacement commitments shall provide Buyer with any portion of the Financing; provided that Buyer may redact from any such alternative source shall have committed copies the fee amounts payable to provide any Alternative Financingtheir Financing sources.
(de) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCOSeller shall, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provideits Affiliates to, and shall use its commercially reasonable best efforts to cause its and their respective Subsidiariesits Affiliates’ Representativesaccountants, to legal counsel and other advisors to, provide to AGCO, at AGCO’s sole expense, all commercially reasonable cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation arrangement of the generality of the foregoingFinancing as may be reasonably requested by Buyer, such reasonable best efforts shall include:
including (i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, meetings and due diligence sessions, sessions with (ii) reasonably assisting Buyer and its Financing sources in the preparation of (A) a marketing document to be used for the Financing and (B) customary materials for rating agencies and potential lenders and other customary syndication activities and agency presentations, (iii) reasonably cooperating with the marketing efforts of AGCO Buyer and its Financing sources, (iv) reasonably facilitating the Financing Sources, in each case, in connection with the Available Financing, at reasonable times pledging of collateral and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information execution and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters definitive agreements relating to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) aboveFinancing, and (yv) providing necessary consents of the directors, officers and managers Seller’s auditor to the filing of Trimble the Financial Statements with the SEC; provided that (I) such requested cooperation shall not unreasonably interfere with the ongoing operations of Seller and its Subsidiaries Affiliates, (II) Seller and its Affiliates shall not be required to deliver provide any audited or unaudited “carve-out” financial statements of the Business other than those included the Financial Statements, (III) Seller and its Affiliates shall not be required to provide any updates to the Financial Statements other than the Supplemental Financial Information, and (IV) Seller and its Affiliates shall not be required to provide such certificates requested cooperation beyond the Outside Date, except Seller and its Affiliates shall be required to cooperate with Buyer by providing reasonable assistance in obtaining any necessary consents of Seller's auditor to the filing of Financial Statements with the SEC at any time such consent is required by Law. Buyer shall, promptly upon request by Seller, reimburse Seller for all out-of-pocket costs incurred by Seller or adopt resolutions approving the financing documentsany of its Affiliates in connection with such cooperation. Buyer and its Affiliates shall, agreements on a joint and certificates several basis, indemnify and hold harmless Seller and its Affiliates from and against any Damages suffered or incurred by them in connection with the Available arrangement of the Financing unless AGCO and any information utilized in connection therewith. Seller shall have confirmed that such directors, officers the right to consent to the use of its and managers are to remain as directors, officers and managers its Affiliates’ logos in connection with the Financing.
(f) Buyer shall keep Seller informed on a timely basis of the Company status of the Financing and its Subsidiaries on and after within one (1) business day of any material developments relating to the Closing and such resolutions, financing documents, agreements and certificates are contingent upon Financing.
(g) Buyer acknowledges that the occurrence of, or only effective as ofinformation being provided to it in connection with the Financing is subject to the terms of Section 6.04.
(h) Notwithstanding anything to the contrary contained in this Agreement, the Closing Seller acknowledges and agrees that it (Bi) assisting AGCO with entering into arrangements derives no contractual rights, whether as third party beneficiary or otherwise, under the Financing Commitments or any financing document related to replace the guaranteesFinancing and shall not be entitled to enforce any such Financing Commitments or document against any agent, arranger, bookrunner, lender, letter of credit and surety bond obligations in effect with respect issuer or other financing party that is a party to the Business;
any such commitment letter or document (iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, ▇▇▇▇▇ Fargo Bank, N.A. and ▇▇▇▇▇ Fargo Securities, LLC and their respective affiliates) (collectively, the PATRIOT Act, “Lender Group”) and (ii) waives any claim (including, if without limitation, any claim under contract, any claim in tort and any claim for specific performance) it may have against any member of the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors Lender Group with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) failure of the Business included Financing to close; provided that nothing contained in this sentence shall prevent the Seller from enforcing any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to terms of this Agreement against the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment Buyer or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputationParent.
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Financing. (ai) Subject to the terms and conditions of this Agreement, AGCO shall Buyer will use its reasonable best efforts to take, or cause to be taken, all actions and use its reasonable best efforts to do, or cause to be done, all things necessary, proper or advisable to obtain and consummate the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) financing on the terms and conditions set forth described in the Bridge Commitment Letter (including as such terms and conditions may be modified or adjusted in accordance with the terms hereof and thereof and within the limits of any “market flex” provisions therein) (the debt financing contemplated by the Bridge Commitment Letter, together with any amendment, modification, supplement, restatement, substitution of waiver thereof in accordance with the Fee Letter) or on such other terms and conditions that are acceptable of this Agreement being referred to AGCO so long as such other terms and conditions constitute Permitted Financing Termsthe “Bridge Debt Financing”), and AGCO shall not Buyer will not, without the prior written consent of Seller, permit any amendment or modification to be made to, or any waiver of any provision or remedy or voluntarily reduce commitments under, the Bridge Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification modification, waiver or waiver reduction of commitments would (A1) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces reduce the aggregate amount of the Committed Bridge Debt Financing (including by increasing changing the amount of fees to be paid in respect of, or original issue discount unless of, the Committed Bridge Debt Financing is increased by a corresponding (or payment of fees having similar effect)(other than within the limits of any “market flex” provisions therein)) below the amount or the Committed Financing is otherwise made necessary, when taken together with proceeds of any permanent financing and available cash, to fund such fees or original issue discountthe Closing Payment, (2) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes impose new or additional conditions conditions, or otherwise expandsamend, amends modify or modifies expand any of the conditions to the Committed receipt of the Bridge Debt Financing, in each case, in a manner that wouldwould make any portion of the Bridge Debt Financing (or satisfaction of the conditions to obtaining the Bridge Debt Financing) less likely to be funded or (3) prevent, in the case of this subclause (B), reasonably be expected to (x) prevent impede or materially delay the ability of Buyer to consummate the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO Buyer to enforce its rights against the other parties to the Bridge Commitment Letter in any material respect (Letter; provided that Buyer may, without the terms consent of any such amendmentSeller, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Bridge Commitment Letter (or definitive financing documents related theretoi) as permitted by this Section 7.15(ain accordance with any “market flex” provisions thereof and (ii) to be amendedadd lenders, modified lead arrangers, bookrunners, syndication agents or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter similar entities in accordance with the terms and subject thereof (in each case, excluding any Affiliates of Buyer) who had not executed the Bank Debt Commitment Letter or the Bridge Commitment Letter, as applicable, as of the date of this Agreement. Notwithstanding anything to the conditions thereofcontrary in this Section 5.15, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, Buyer shall have the right to replace all or a portion of the Bridge Debt Financing with (x) enter into other the proceeds of consummated capital markets debt financing arrangements that are segregated by the Buyer so as to be available to consummate the Closing on the Closing Date and/or (y) other long term debt from the same and/or alternative bona fide third-party financing sources (any such debt financing, a the “Permanent Debt Financing” and, together with the Committed Bridge Debt Financing, the “Available Financing”) so long as all conditions precedent to effectiveness of definitive documentation for such financing have been satisfied or the conditions precedent to funding of such financing are in the aggregate, in respect of certainty of funding, substantially equivalent to (or more favorable and thereby reduce less onerous to Buyer and Seller than) the amount of conditions precedent set forth in the Committed Financing under the Bridge Commitment Letter (and would not prevent, impede or definitive financing documents related thereto), (y) reduce and/or replace delay the amount ability of Buyer to consummate the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter Closing on the terms and conditions contained Closing Date.
(ii) Buyer will use reasonable best efforts to (A) (1) maintain in effect the Bank Debt Commitment Letter (including any definitive agreements entered into in connection therewith) and (2) maintain in effect, until the “flex” provisions included earlier of the initial funding of the Bridge Debt Financing and the replacement of the Bridge Debt Financing with the Permanent Debt Financing, the Bridge Commitment Letter and (B) satisfy on a timely basis (or obtain the waiver of) all conditions in the Fee Letter) Bridge Commitment Letter applicable to, and within the control of, Buyer necessary to obtaining the Bridge Debt Financing on the Closing Date and comply with (or on such other terms that are acceptable obtain a waiver of) its obligations thereunder (but excluding any condition where the failure to AGCO be so long satisfied is a direct result of Seller’s failure to furnish information as such other required under Section 5.15(b), subject to the terms and upon satisfaction or waiver of the conditions constitute Permitted Financing Termsset forth in the Bridge Commitment Letter (without limiting clause (B) above), and (C) satisfy all conditions to funding in cause the Financing Sources under the Bridge Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate fully fund the Committed Bridge Debt Financing at provided for thereunder on or prior to the Closing Date, as applicable, including using its . Buyer will keep Seller reasonably informed on a reasonably current basis and in reasonable best detail of the status of Buyer’s efforts to cause obtain the Bridge Debt Financing and to satisfy the conditions thereof and shall provide to Seller, upon Seller’s request and otherwise within three (3) Business Days of the occurrence thereof, copies of any material amendments, modifications or supplements to the Bridge Commitment Letter related to the availability of the Bridge Debt Financing, the commitment by the lenders and to provide the other persons committing to fund Bridge Debt Financing, or the Committed Financing on the Closing Date (conditions, the “Committed Financing Sources”certain funds” provisions, any “market flex” provisions (redacted in a customary manner) and (D) or the termination provisions of the Bridge Commitment Letter as well as copies of any definitive financing documents. In the event that Buyer commences an enforcement action to enforce its rights under the Bridge Commitment Letter or the definitive financing documents entered into in connection therewith and/or to compel the Financing Sources under the Bridge Commitment Letter to fund the Bridge Debt Financing (any such action, a “Financing Action”), Buyer shall keep Seller reasonably informed on a reasonably current basis and in reasonable detail of the status of the Financing Action; provided that neither Buyer nor any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO of its Affiliates shall not be required to consummate provide access or disclose information to the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble prompt notice extent such access or disclosure would, (x) jeopardize the attorney-client privilege or other immunity or protection from disclosure of any breach Buyer or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financingits Affiliates, (y) violate any (i) Law or Order applicable to Buyer, its Affiliates or the assets, or operation of the receipt business, of Buyer or its Affiliates, including any written notice Data Protection Law, or other communication(ii) any COVID-19 Measure, however, that, in each the case from any Committed Financing Source with respect to any actual of clauses (x) or potential material breach(y), material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions Buyer shall inform Seller of the Commitment Letter general nature of the information being withheld and, upon Seller’s request and cooperate with Seller to provide such information, in whole or definitive agreements relating to the Committed Financing if such breachin part, default, termination or repudiation in a manner that would not result in a material delay of, or in any way limit, the availability of the Committed Financing and outcomes described in the foregoing clauses (zx) if at any time for any reason AGCO believes or (y), including, in good faith that it will not be able to obtain all or the case of clause (y)(ii), providing such information electronically.
(iii) If any portion of the Committed Bridge Debt Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming becomes unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)a breach by Seller of this Agreement that would cause the Bridge Debt Financing not to be available in accordance with the terms of the Bridge Commitment Letter), or if any portion of the Committed Financing otherwise becomes unavailable in each case, on the terms and conditions (including the flex provisions) contemplated in the Bridge Commitment Letter (including any “market flex” provisions), (A) Buyer will promptly notify Seller and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall (B) Buyer will use its reasonable best efforts to arrange and obtain in replacement thereof promptly following the occurrence of such event alternative financing (“Alternative Financing”from the same financing sources or other bona fide third party financing sources) from alternative sources (1) in an amount at least equal sufficient, when added to any portion of the unavailable portion thereofBridge Debt Financing that is available and proceeds of any permanent financing and available cash, as to pay in cash the case may be Closing Payment and (2) that does not impose new or additional conditions that were not contained in the Bridge Commitment Letter or otherwise expand, amend or modify any of the conditions that were contained in the Bridge Commitment Letter (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings provisions of the type contemplated by the Bridge Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing SourcesLetter), in each case, in connection with a manner materially less favorable or more onerous to Buyer or Seller, taken as a whole, or that could reasonably be expected to prevent, impede or delay the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO ability of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary Buyer to consummate the Available Closing or prevent, impede or delay the funding of the Bridge Debt Financing (any such alternative financing satisfying such requirements, an “Alternative Financing”). Buyer shall provide a correct and for such Required Information complete copy of each alternative financing commitment letter (together with a correct and complete copy of any related fee letter, which may be redacted as provided in Section 4.8 with respect to remain Compliant;
(iiithe Fee Letters) to Seller promptly but in any event within three (3) Business Days of Buyer’s entry into such commitment letter. In such event (w) the extent reasonably requested by AGCOterm “Financing” will be deemed to include any Alternative Financing, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or term “Bridge Commitment Letter” will be deemed to include any of its Subsidiaries under bridge commitment letters with respect to any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) aboveAlternative Financing, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not term “Fee Letter” will be required deemed to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, include any fee letter of credit and surety bond obligations in effect with respect to the Business;
any such Alternative Financing and (ivz) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant reference to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to “Financing Sources” will include the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business financing institutions contemplated to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Alternative Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputation.
Appears in 1 contract
Sources: Share Purchase Agreement (Walgreens Boots Alliance, Inc.)
Financing. (a) Subject to Without limiting the terms and conditions generality of this AgreementInvestor’s obligations under Section 5.3, AGCO shall Investor will use its reasonable best efforts to take, or cause to be taken, and cause its Affiliates to take, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) as promptly as practicable and in timely fashion on the terms and conditions described in the Commitment Documents, including (i) maintaining in effect the commitment for the Financing set forth in the Commitment Letter Documents until the consummation of the Transactions, (including any “flex” provisions in ii) negotiating, executing and delivering definitive agreements with respect to the Fee Letter) Financing on or prior to the Closing on the terms and conditions contemplated by the Commitment Documents and on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall would not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces reduce the aggregate amount of the Committed Financing (including by increasing changing the amount of fees to be paid or original issue discount unless of the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discountDebt Financing) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes impose new or additional conditions to the funding of the Financing from those set forth in the Commitment Documents delivered on the date hereof, or otherwise expandsamend, amends modify or modifies expand any conditions, to the funding of the conditions to Financing from those set forth in the Committed Financing, Commitment Documents delivered on the date hereof in a manner that would, in the case of this subclause (B), would reasonably be expected to (1) impede, prevent, delay or cause all or any portion of the Financing to be funded on a date later than the date on which the Closing is otherwise required to occur pursuant to Section 2.4, (2) make the funding of the Financing (or satisfaction of the conditions to obtaining the Financing) less likely to occur or (3) adversely affect (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO Investor to enforce its rights against the other parties to the Commitment Letter in any material Documents or the definitive agreements with respect thereto, (y) the terms ability of Investor to consummate the Transactions or (z) the likelihood of consummation of the Transactions or (C) be otherwise adverse to the interests of the Company and the Contributors (any such amendmentadverse effect, modification or waiver not in violation of these clauses (A) and (B), the an “Permitted Financing TermsAdverse Effect on Financing”); provided(iii) satisfying (or obtaining a waiver thereof) and causing to be satisfied (and causing its Affiliates to satisfy), that subject on a timely basis, all conditions applicable to compliance Investor and its Affiliates in such Commitment Documents and the definitive agreements related thereto; and (iv) complying with the other provisions of this Section 7.15, AGCO may amend their respective obligations under the Commitment Letter or such definitive documents to correct typographical errorsDocuments, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, including by consummating the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall In the event that all conditions to the commitment of any counterparty to the Commitment Documents providing such Financing (other than conditions that are within the control of Investor or Sponsor, including conditions relating to (i) the availability or funding of any of the Equity Financing or the failure of any equity funding condition of similar effect in the Note Purchase Agreement, (ii) the failure to deliver documents by Investor or its Affiliates at the Closing, (iii) the failure to pay costs, fees, expenses and other compensation contemplated by the Commitment Documents that are payable by Investor, Sponsor or any of their respective Affiliates to the lead arrangers, any lenders and administrative agents or any other Person, or (iv) a breach, in any material respect, by Investor, Sponsor or any of their respective Affiliates under the Commitment Documents) have been satisfied, Investor will consummate the Financing on or before the date on which the Closing is required to occur pursuant to Section 2.4. Investor will not, and will cause its respective Affiliates not to, take or refrain from taking, directly or indirectly, any action that could reasonably be expected to result in a failure of any of the conditions contained in the Commitment Documents or in any definitive agreement related to the Financing. Investor will not, and will cause its respective Affiliates not to, object to the utilization of any “flex” provisions by any Financing Source.
(c) If any portion of the Financing becomes unavailable on the terms and conditions (including any applicable flex terms) contemplated in the Commitment Documents, or Investor becomes aware of any event or circumstance that could reasonably be expected to make any portion of the Financing unavailable on the terms and conditions (including any applicable flex terms) contemplated in the Commitment Documents, Investor will promptly notify the Contributors, use its reasonable best efforts (taking into account the anticipated timing of the Closing Date to arrange and the Marketing Period) to (A) maintain obtain in effect the Commitment Letter in accordance with the terms and subject to the conditions replacement thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to, alternative financing from alternative sources, in a like amount and on like terms, as promptly as practicable following the occurrence of such event, but, in no event, later than the date Investor is required to consummate the Closing pursuant to Section 2.4; provided, however, that any such alternative financing will not, without the prior written consent of the Contributors, have an Adverse Effect on Financing. After any amendment, supplement, modification, replacement or waiver of the Note Purchase Agreement (prior to the Committed Closing) with respect to the Debt Financing in accordance with this Section 5.12, Investor shall promptly deliver to the Contributors a true and complete copy thereof. For purposes of this Agreement, references to the “Financing” will include the financing contemplated by the Commitment Letter on Documents as permitted to be amended, modified or replaced by this Section 5.13(c) or Section 5.13(d), and references to the terms and conditions contained in “Commitment Documents” will include such documents as permitted to be amended, modified or replaced by this Section 5.13(c) or Section 5.13(d).
(d) Investor will not permit any amendment, modification or waiver, consent to, replacement, or supplement to be made to the Commitment Letter Documents without obtaining the prior written consent of the Contributors, except in accordance with Section 5.13(c).
(e) Investor will keep the Contributors reasonably informed on a current and timely basis of the status of Investor’s efforts to obtain the Financing and to satisfy the conditions thereof, including advising and updating the “flex” provisions included Contributors, in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms)a reasonable level of detail, (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are to status, proposed closing date and material terms of the definitive documentation related to the Financing, providing copies of then current drafts of the Note Purchase Agreement and other primary definitive documents, and giving the Contributors prompt notice of any material change (adverse or otherwise) with respect to the Financing. Without limiting the foregoing, Investor will notify the Contributors promptly (and in any event within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing two Business Days) if at or prior to any time before the Closing Date: (i) any Commitment Document expires or is terminated for any reason (or if any Person attempts or purports to terminate or repudiate any Commitment Document, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date whether or not such attempted or purported termination or repudiation is valid); (the “Committed Financing Sources”ii) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) Investor obtains knowledge of any breach or default or any threatened breach or default (or any event or circumstance that, with or without due notice, lapse of time or both, would reasonably be expected to give rise to any breach or default) by any party to any Commitment Document or any definitive document related to the Financing of any provisions of the Commitment Letter Documents or any definitive agreements relating document related to the Committed Financing of which AGCO has Knowledge if such breach Financing; (iii) Investor receives any communication (written or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (yoral) of the receipt of any written notice or other communication, in each case from any Committed Financing Source Person with respect to any actual (A) actual, potential or potential material threatened breach, material default, termination or repudiation by any party to the Commitment Letter Documents or any definitive agreements relating document related to the Committed Financing of any provisions of the Commitment Letter Documents or any definitive agreements relating document related to the Committed Financing if or (B) dispute or disagreement between or among any parties to the Commitment Documents; (iv) any Financing Source refuses to provide or expresses (orally or in writing) an intent to refuse to provide all or any portion of the Financing contemplated by the Commitment Documents on the terms set forth therein (or expresses (orally or in writing) that such breachPerson does not intend to enter into all or any portion of definitive documentation related to the Financing or to consummate the transactions contemplated thereby); or (v) there occurs any event or development that could reasonably be expected to adversely impact the ability of Investor to obtain all, default, termination or repudiation would result in a material delay any portion of, the Financing contemplated by the Commitment Documents on the terms and conditions, in the manner or in from the sources contemplated by any way limit, the availability of the Committed Commitment Documents or the definitive documents related to the Financing and (z) or if at any time for any other reason AGCO Investor no longer believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources sources contemplated by any of the Commitment Letter Documents or the definitive agreements relating documents related to the Committed Financing. As soon as reasonably practicable (but in any event within two Business Days after the date Trimble delivers the Contributors deliver to AGCO Investor a written requestrequest therefor), AGCO shall Investor will provide any information reasonably requested by Trimble the Contributors relating to any circumstance referred to in clause clauses (x), i) through (y) or (zv) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(df) Prior Investor shall not consent to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings any assignment of the type contemplated by obligation of any Purchaser (as defined in the Commitment Letter Note Purchase Agreement) to purchase the Initial Notes (as defined in connection with the Available Financing. Without limitation of Note Purchase Agreement) or agree to any amendment which results in the generality of initial Purchasers listed on the foregoing, such reasonable best efforts shall include:
Purchaser Schedule (ias defined in the Note Purchase Agreement) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with not being required to purchase the marketing efforts of AGCO and the Financing SourcesInitial Notes, in each case, in connection with without the Available Financing, at reasonable times and locations consent of the Contributors (not to be mutually agreed;unreasonably withheld, conditioned or delayed).
(iig) delivery Notwithstanding this Section 5.12 (but subject to AGCO of the Required Information Section 8.2 and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunderSection 10.15), including the delivery of customary authorization and representation letters Investor affirms that it is not a condition to the extent contemplated by Closing or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries other obligations under this Agreement (including consummating the Investor Contribution) that Investor obtains financing for or related to any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause Transactions (ii) above, and (y) the directors, officers and managers including receipt of Trimble and its Subsidiaries shall not be required to deliver such certificates all or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers any portion of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets proceeds of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) aboveFinancing), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputation.
Appears in 1 contract
Sources: Contribution Agreement (EQT Corp)
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO each of Parent and Merger Sub shall use its commercially reasonable best efforts efforts, and cause its controlled Affiliates to use commercially reasonable efforts, to take, or cause to be taken, all actions necessary or reasonably advisable to obtain the Committed Financing contemplated by the Financing Commitments on or prior to the Closing Date, including with respect to the following: (taking i) obtain the External Financing on the terms and conditions described in the External Financing Commitments (including, as necessary, any “flex” provisions contained in any Fee Letters) or on other terms no less favorable in any material respect, in aggregate, to Parent and Merger Sub than those described in the External Financing Commitments, (ii) comply with and maintain in effect the External Financing Commitments until the Transactions are consummated, (iii) negotiate and enter into account any reductions thereof pursuant to Section 7.15(b)(A)) Definitive Debt Documents no later than the Closing on the terms and conditions set forth in the Debt Commitment Letter Letters (including any “market flex” provisions in the any Fee Letter) and (iv) satisfy, or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification cause to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter satisfied (or following entry into definitive documents relating to obtaining the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)of), or on a timely basis (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to the closing of and funding in under the Commitment Letter and such definitive agreements with respect thereto External Financing Commitments applicable to Parent and/or Merger Sub that are within its control andcontrol; provided that Parent and/or Merger Sub may amend, subject supplement, waive or modify the External Financing Commitments or any Definitive Debt Document, and/or elect to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain replace all or any portion of the Committed External Financing with alternative financing (the “Alternative Financing”), in each case so long as (A) the aggregate proceeds of the External Financing (as amended, supplemented, waived or modified) and/or the Alternative Financing, together with the aggregate proceeds of the Equity Financing, will be sufficient for Parent and the Surviving Company to pay (i) the Merger Consideration, and (ii) any other amounts required to be paid by Parent or Merger Sub on the terms and conditions, Closing Date in connection with the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) consummation of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on Transactions upon the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar feehereby, (B) have any liability such amendment or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date modification or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputationthe
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO Each Parent Party shall use its reasonable best efforts to obtain the Committed Debt Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth in the Commitment Letter (including any the “market flex” provisions applicable thereto) described or contemplated in the Fee Letter) Debt Financing Letters pursuant to the terms thereof (or on such other terms and conditions that are acceptable to AGCO each Parent Party and the providers of the Debt Financing so long as such other terms and conditions constitute Permitted are not prohibited by this Section 7.14(a)) and, taking into account the expected timing of the Marketing Period, satisfy (or obtain the waiver of) the conditions to the Debt Financing Termsas described in, and AGCO comply with the covenants applicable to the Parent set forth in, the Debt Financing Letters, and shall not permit any termination (other than in accordance with its terms as in effect on the date hereof), amendment or modification to be made to, or any waiver of any provision under, or any replacement of, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) Debt Financing Letters if such termination, amendment, modification modification, waiver or waiver replacement (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Debt Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated by the Debt Commitment Letter as in effect on the date hereof unless after giving effect to such termination, amendment, modification, waiver or replacement, the representation and warranty set forth in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources sixth sentence of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A))5.06 shall remain true, complete and correct, or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, receipt of Debt Financing in a manner that would, in the case of this subclause (B), would reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date (taking into account the expected timing of the Marketing Period) or prevent the funding of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing DateDate or (y) materially and adversely impact the ability of any Parent Party to enforce its rights against other parties to the Debt Financing Letters or the definitive agreements, if any, with respect to the Debt Financing (the “Debt Financing Documents”) or, taking into account the expected timing of the Marketing Period, or (y) adversely impact consummate the ability of AGCO to enforce its rights against Transactions; provided that the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO Parent Parties may amend the Debt Financing Letters to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who have not executed the Debt Commitment Letter or such definitive documents as of the date hereof provided the other terms to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, the Debt Financing Letters are unchanged. Parent shall use commercially reasonable efforts to cause any entities party thereto. AGCO shall promptly deliver Debt Financing to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and permit the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing payments contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedTax Receivable Agreement.
(b) AGCO Each Parent Party shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing PeriodA) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Debt Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required AmountLetters, (B) taking into account the expected timing of the Marketing Period, to negotiate and enter into definitive agreements with respect to on the Committed Closing Date the Debt Financing contemplated by the Commitment Letter Documents on the terms and conditions contained in the Commitment Letter (including the “market flex” provisions included applicable thereto) described or contemplated in the Fee Letter) Debt Commitment Letter (or on such other terms and conditions that are acceptable to AGCO each Parent Party and the providers of the Debt Financing, so long as such other terms and conditions constitute Permitted Financing Termsare not prohibited by Section 7.14(a)), (C) satisfy all conditions to funding in enforce its rights under the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Debt Financing at or prior to the Closing Date, as applicableLetters, including using its reasonable best efforts right to cause the lenders Debt Financing to be funded following satisfaction of the conditions thereto, (D) to comply with its obligations under the Debt Financing Letters to the extent the failure to comply with such obligations would adversely impact the amount, timing, conditionality or, taking into account the expected timing of the Marketing Period, the availability of the Debt Financing at the Closing, (E) to pay or cause to be paid all commitment fees or other fees required by the Debt Commitment Letter to be paid as they become due and payable and (F) to draw upon and consummate the other persons committing to fund the Committed Debt Financing on the Closing Date (as and to the “Committed Financing Sources”) extent necessary to ensure that Parent has sufficient funds, together with any cash, available lines of credit or other sources of immediately available funds, to enable it to pay the Aggregate Gross Cash Consideration and (D) enforce its rights other amounts payable by a Parent Party under this Agreement and to finance the refinancing of Indebtedness contemplated by the Debt Commitment Letter and any definitive agreements with respect theretothis Agreement. Trimble acknowledges Parent shall keep the Company informed on a reasonably current basis and agrees that AGCO shall not be required to consummate the Available Financing before the final day in reasonable detail of the Marketing Period.
(c) AGCO status of its efforts to arrange the Debt Financing and, upon the reasonable written request to Parent, provide to the Company executed copies of the Debt Financing Documents, if any. Without limiting the generality of the foregoing, the Parent Parties shall give Trimble the Company prompt written notice (x) of any breach or default by any party to any of the Commitment Letter or definitive agreements relating Debt Financing Letters or, to the Committed extent entered into and effective prior to the Closing Date, the Debt Financing Documents of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed FinancingParent Party becomes aware, (y) of the receipt of any written notice or other communication, in each case written communication from any Committed Financing Source with respect to any (1) actual or potential material threatened breach, material default, termination (other than in accordance with its terms) or repudiation by any party to any of the Commitment Letter Debt Financing Letters or, to the extent entered into and effective prior to the Closing Date, the Debt Financing Documents of any provisions thereof or definitive agreements (2) material dispute or material disagreement relating to the Committed Debt Financing of any provisions with respect to the obligation to fund the Debt Financing or the amount of the Commitment Letter or definitive agreements relating Debt Financing to be funded at the Closing (but excluding, for the avoidance of doubt, any ordinary course negotiations with respect to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability terms of the Committed Debt Financing or the Debt Financing Documents), and (z) if at any time for any reason AGCO any Parent Party believes in good faith that there is a reasonable possibility that it will not be able to obtain all or any portion of the Committed Debt Financing on the terms and conditionsterms, in the manner or from the Committed Financing Sources sources contemplated by the Commitment Letter or definitive agreements relating to the Committed FinancingDebt Financing Letters. As soon as reasonably practicable practicable, after the date Trimble the Company delivers to AGCO the Parent Parties a written request, AGCO each Parent Party shall provide any information reasonably requested by Trimble the Company relating to any circumstance the circumstances referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO in no event shall not any Parent Party be required to share any information with Trimble the Company that such Parent Party determines in its sole discretion is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such similar privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in If any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Debt Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letterunavailable, and such portion is reasonably required to effect the Closing, AGCO each Parent Party shall use its reasonable best efforts to arrange and obtain in replacement thereof thereof, as promptly as reasonably practicable, alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal sufficient, when added to the unavailable portion thereofof the Debt Financing and cash on hand of the Parent Parties and of the Company Parties and their respective Subsidiaries that is available to the Parent Parties, as to pay the case may be (taking into account any reductions thereof pursuant Aggregate Gross Cash Consideration and other amounts payable by the Parent Parties under this Agreement and to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in finance the reasonable judgment refinancing of AGCO, than Indebtedness contemplated by the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter or this Agreement (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, “Alternative Financing”); provided that in no event shall the any Parent Party be required to, and in no event shall its reasonable best efforts obligation set forth in this Section 7.15 be deemed or construed so as to require AGCO that any Parent Party, pay any fees in excess of those contemplated by the Debt Financing Letters or obtain Alternative Financing that (1) includes terms (including any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisionsprovisions applicable thereto) that are less favorable in any material respect to any Parent Party than those contained in the Debt Commitment Letter (including any “market flex” provisions applicable thereto) in effect on the date hereof, (2) involves any conditions to funding of the Debt Financing that are not contained in the Debt Commitment Letter as in effect on the date hereof or (ii3) seek any equity investment would reasonably be expected to prevent, impede, or any offering, placement, sale or other issuance delay the consummation of any equity securities (it being understood and agreed that any Alternative Financing the Transactions. The Parent Parties shall be permitted to be in the form of any such equity financing). AGCO shall promptly deliver to Trimble the Company true and complete copies of all written agreementsany debt commitment letter and related fee letter (in the case of any such fee letter, arrangements or contracts (including any side letters or (subject to customary redactions) fee lettersredacted in a manner consistent with the Debt Fee Letter) pursuant to which any such alternative source shall have committed to provide any Alternative Financing (the “Alternative Financing Commitment Letter”). The Company acknowledges and agrees that the Parent Parties shall not be required to consummate the Debt Financing before the final day of the Marketing Period. As applicable, references in this Agreement (other than with respect to representations in this Agreement made by the Parent Parties that speak as of the date hereof) (i) to “Debt Financing” shall include any such Alternative Financing; (ii) to “Debt Financing Letters” shall include any such Alternative Financing Commitment Letter; and (iii) to “Financing Documents” and “Debt Financing Documents” shall be to the definitive documents, if any, in respect of such Alternative Financing.
(dc) Prior to the Closing, Trimble The Company Parties shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provideto, and shall use its reasonable best efforts to cause each of its Subsidiaries and its and their respective Subsidiaries’ RepresentativesRepresentatives to use its and their reasonable best efforts to, to provide to AGCO, at AGCO’s sole expense, all cooperation and assistance reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter Parent in connection with the Available Debt Financing. Without limitation The Company Parties shall (or, in the case of the generality of the foregoingclauses (i), such (ii), (iii), (iv), (vi), (xi) or (xii), shall use reasonable best efforts shall include:to):
(i) upon reasonable noticeto the extent reasonably requested by Parent, participation by management and Representatives of Trimble, provide Parent with pertinent information regarding the Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other Parties as is customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, to provide in connection with the Available any Debt Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery (A) furnish to AGCO Parent the information described in clause (b) of the definition of “Required Information Company Financial Information”; (B) by November 14, 2023, furnish to Parent the information described in clause (a)(iii) of the definition of “Required Company Financial Information”; and other financial and other pertinent information regarding (C) if the BusinessClosing Date occurs after February 12, Company and their respective Subsidiaries 2024, furnish to Parent as soon as reasonably practicable, but in the possession of Trimbleno event later than March 15, 2024, the information described in clause (a)(iv) of the definition of “Required Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain CompliantFinancial Information”;
(iii) to the extent reasonably requested by AGCO▇▇▇▇▇▇, (A) assisting participate in a reasonable number of meetings, presentations and roadshows with, on the preparation one hand, the parties acting as lead arrangers, bookrunners, underwriters or agents for, and prospective lenders, investors and purchasers of, the Debt Financing, and, on the other hand, management and executing Representatives (with appropriate seniority and delivering, customary certificates or documents; provided, however, that (xexpertise) no obligation of the Company Company, due diligence sessions (including directing the Audit Subsidiary’s auditors to participate therein or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization separate accounting due diligence calls), drafting sessions and representation letters referred to in clause (ii) abovesessions with rating agencies, and (y) reasonably cooperate with the directors, officers and managers marketing efforts of Trimble Parent and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documentsFinancing Sources, agreements and certificates in each case in connection with any Debt Financing and with appropriate advance notice and at times and locations to be mutually agreed between Parent and the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the BusinessCompany;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCOParent, directing assist with the preparation of appropriate and customary materials for rating agency presentations, offering documents, bank information memoranda (including a version that does not include material non-public information regarding the Company Parties and their respective Subsidiaries), private placement memoranda, prospectuses and similar documents required in connection with any Debt Financing;
(v) in connection with any offering of securities, direct the independent auditors with respect to for the Business Audit Subsidiary to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO Parent with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business Audit Subsidiary and the Company included in any offering documents relating to the Committed any Debt Financing that consists of Rule 144A marketed debt securities in which the combined consolidated financial statements of the Business Audit Subsidiary and/or the Company are included, and, if required, customary consents to the use of their audit reports on the combined consolidated historical financial statements of the Business Audit Subsidiary in any offering documents relating to the Available any Debt Financing in which the combined consolidated historical financial statements of the Business Audit Subsidiary are included;
(vi) assist in the preparation of, and execute and deliver, one or more credit agreements, indentures, pledge and security documents, purchase agreements, other definitive financing documents and other customary certificates or documents (including the execution and delivery of customary authorization and representation letters with respect to the bank information memoranda) on terms that are reasonably requested by Parent in connection with any Debt Financing, and take organizational actions as may be reasonably requested by Parent in connection with any Debt Financing, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall the protective provisions in the proviso below;
(vii) cause Bondco (A) be required to pay any commitment take no actions whatsoever aside from (1) actions necessary to preserve its existence or other similar fee(2) as set forth in this Agreement, including the succeeding clauses (B) and (C), (B) have any liability or obligation to comply with its obligations under any loan agreement this Agreement and related documents, unless the agreements contemplated herein and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur upon Parent’s request, to issue non-convertible debt securities on terms mutually agreed between Parent and its Financing Sources and take actions reasonably related thereto or undertaken in connection therewith as specified by Parent (including entering into definitive agreements in respect of such issuance), in each case which are not reasonably likely to result in liability or cost to Bondco or the Company Parties that is not reimbursed or indemnified, as applicable, by Parent in accordance with Section 7.14(e), and the proceeds of which (together with any other liability amount required by the trustee or initial purchasers to be deposited into escrow) shall be pledged to secure such debt securities and held in connection with escrow until the Available Financing not contingent upon the occurrence earlier of the Closing Date or (D) be required to take any action that will (x) conflict with the Closing, upon which all of such proceeds shall be applied as set forth in Section 2.05, to pay, in whole or violate ▇▇▇▇▇▇▇’▇ in part, the Aggregate Gross Cash Consideration or any to finance, in whole or in part, the refinancing of its Subsidiaries’ Organizational Documents (to Indebtedness contemplated by the extent any provision creating such conflict was not created in contemplation of the Available Financing) Debt Commitment Letter or any Laws or this Agreement, and (y) result the termination of this Agreement, whereupon such proceeds shall be applied to redeem all of such debt securities;
(viii) upon Parent’s request, form a Delaware corporation that is a wholly owned direct subsidiary of the Company ( “Corporate Co-Issuer”) and cause Corporate Co-Issuer (A) to take no actions whatsoever aside from (1) actions necessary to preserve its existence or (2) upon Parent’s request, serve as co-issuer of any non-convertible debt securities issued by Bondco pursuant to the above clause (vii) and take actions reasonably related thereto or undertaken in the contravention ofconnection therewith as specified by Parent (including entering into definitive agreements in respect of such issuance), or that would in each case which are not reasonably be expected likely to result in a violation liability or breach of, cost to Corporate Co-Issuer or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner Company Parties that is not intended reimbursed or indemnified, as applicable, by Parent in accordance with Section 7.14(e);
(ix) upon Parent’s request, form a Delaware limited liability company that is a wholly owned direct subsidiary of the Company (“Loanco”) and cause Loanco (A) to nor take no actions whatsoever aside from (1) actions necessary to preserve its existence and (2) upon Parent’s request, borrow term loans on terms mutually agreed between Parent and its Financing Sources and take actions reasonably related thereto or undertaken in connection therewith as specified by Parent (including entering into definitive agreements in respect of such borrowing), in each case which are not reasonably likely to harm result in liability or disparage Trimble or any of its Subsidiaries cost to Loanco or the reputationCompany Parties that is not reimbursed or indemnified, as applicable, by Parent in accordance with Section 7.14(e), and the proceeds of which (together with any other amount required by the administrative agent or lenders to be deposited into escrow) shall be pledged to secure such term loans and held in escrow until the earlier of (x) the Closing, upon which all of such proceeds shall be applied as set forth in Section 2.05, to pay, in whole or in part, the
Appears in 1 contract
Sources: Merger Agreement (Forward Air Corp)
Financing. (a) Subject Logo and ▇▇▇▇▇▇▇▇ will use reasonable efforts to take (or cause to be taken) all actions, and do (or cause to be done) all things, necessary, proper or advisable to obtain (i) the Debt Commitment Letter promptly after the date hereof in an aggregate principal amount of at least $325,000,000 on terms substantially consistent with the Highly Confident Letter (or otherwise on terms reasonably acceptable to Logo and ▇▇▇▇▇▇▇▇) and (ii) the Debt Financing on a timely basis (and in any event prior to the terms and conditions of this Agreement, AGCO shall use its reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)Outside Date) on terms substantially consistent with the terms and conditions set forth Debt Commitment Letter or, in the Commitment Letter absence thereof, the Highly Confident Letter. Each Party will keep the other informed on a current basis and in reasonable detail of the status of the Debt Financing and provide such further updates upon the request of the other Party.
(including any “flex” provisions in b) From and after the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Termsdate of execution thereof, and AGCO shall not neither Logo nor ▇▇▇▇▇▇▇▇ will permit any amendment or modification to be made to, or any waiver of any provision or remedy under, or replace, the Debt Commitment Letter or, in the absence thereof, the Highly Confident Letter, without the prior written consent of Logo or the Fee Letter (or following entry into definitive documents relating to the Committed Financing▇▇▇▇▇▇▇▇, such definitive documents) as applicable, if such amendment, modification modification, waiver or waiver replacement (Ax) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate cash amount of the Committed Debt Financing (including contemplated by increasing the Debt Commitment Letter or, in the absence thereof, the Highly Confident Letter to be provided on the Closing Date, when taken together with all other available sources of funding, below the amount of fees necessary to be paid or original issue discount unless consummate the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), Transactions or (By) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financingreceipt of the Debt Financing contemplated by the Debt Commitment Letter or, in the absence thereof, the Highly Confident Letter, in a manner that would, in the case of this subclause (B), would reasonably be expected to (xA) delay or prevent or materially delay the Closing or (B) delay, prevent or otherwise make less likely to occur the availability funding of the Committed Debt Financing on the Closing Date taking into account the expected timing (or satisfaction of the Closing Date, taking into account conditions to obtaining the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (BDebt Financing), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(bc) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date Logo and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consentwill use reasonable efforts to take, (x) enter into other debt financing arrangements (any such debt financingor cause to be taken, a “Permanent Financing” andall actions and to do, together with or cause to be done, all things necessary, proper or advisable to obtain the Committed Debt Financing, including, without limitation, to (i) from and after the “Available Financing”) date of execution thereof, maintain in full force and thereby reduce effect the amount of the Committed Financing under the Debt Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCOor, in the case absence thereof, the Highly Confident Letter until the earlier of each the consummation of clauses (x)the Transactions or the termination of this Agreement in accordance with its terms, (yii) satisfy on a timely basis all conditions and (z)covenants applicable to Logo or ▇▇▇▇▇▇▇▇, as applicable, to obtain the extent that Debt Financing at the remaining amount of Closing as set forth in the Committed Financing under the Debt Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required AmountLetter, (Biii) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter thereto on the terms and conditions contained (including flex provisions) contemplated by the Debt Commitment Letter or, in the Commitment absence thereof, the Highly Confident Letter (including and provide copies thereof to the “flex” provisions included other, as applicable, to the extent that any Transferred Entity or any officer, manager or employee thereof is expected to execute the same in connection with the Fee LetterDebt Financing) and (or on such other terms that are acceptable to AGCO so long as such other iv) consummate the Debt Financing in accordance with the terms and conditions constitute Permitted Financing Terms)of the Debt Commitment Letter or, (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control andabsence thereof, subject to satisfaction of all conditions to fundingthe Highly Confident Letter, to consummate the Committed Financing at or prior to the Closing DateClosing.
(d) Logo and ▇▇▇▇▇▇▇▇ will promptly, and in any event within two Business Days, notify the other in writing (i) if Logo or ▇▇▇▇▇▇▇▇, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) has knowledge of any breach or default (or any event or circumstance that, with or without notice, lapse of time or both, would reasonably be expected to give rise to any breach or default) by any party to any Debt Commitment Letter, the Commitment Highly Confident Letter or any definitive agreements relating document related to the Committed Financing Debt Financing, (ii) if Logo or ▇▇▇▇▇▇▇▇, as applicable, has actual knowledge of which AGCO has Knowledge if such breach any event that would reasonably be expected to constitute or default would result in a material delay of, failure to satisfy a condition precedent or other contingency set forth in any way limitDebt Commitment Letter or, in the absence thereof, the availability of the Committed FinancingHighly Confident Letter, (yiii) of the receipt by Logo or ▇▇▇▇▇▇▇▇, as applicable, of any written notice or other communication, in each case from any Committed Financing Source Person with respect to any actual or potential material breach, material default, termination or repudiation by any party to a Debt Commitment Letter, the Commitment Highly Confident Letter or any definitive agreements relating document related to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Debt Financing and (ziv) if at any time for any reason AGCO Logo or ▇▇▇▇▇▇▇▇, as applicable, reasonably believes in good faith that it the Company will not be able to obtain all or any portion of the Committed Debt Financing on substantially the terms and conditionscontemplated by the Debt Commitment Letter or, in the manner absence thereof, the Highly Confident Letter, or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating documents related to the Committed Debt Financing. As soon In any circumstance referred to in the preceding sentence, Logo or ▇▇▇▇▇▇▇▇, as reasonably practicable after the date Trimble delivers to AGCO a written requestapplicable, AGCO shall will provide any information reasonably requested by Trimble the other relating to such circumstance as soon as reasonably practicable, but in any circumstance referred to in clause event within two Business Days after such request.
(x), (ye) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in If any portion of the Committed Debt Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of required to consummate the Committed Financing otherwise Transactions becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Debt Commitment Letter and Fee or, in the absence thereof, the Highly Confident Letter, Logo or ▇▇▇▇▇▇▇▇, as applicable, will promptly notify the other of the same in writing (as provided above) and such portion is reasonably required to effect the Closing, AGCO shall Logo and ▇▇▇▇▇▇▇▇ will cooperate and use its their respective reasonable best efforts to arrange to obtain alternative debt financing on terms in the aggregate not materially less favorable to the Company (as jointly determined by Logo and obtain ▇▇▇▇▇▇▇▇ in replacement thereof alternative good faith) than the financing contemplated by the Debt Commitment Letter (the “Alternative Financing”) from alternative debt sources in an amount at least equal sufficient to consummate the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as Transactions promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO Logo or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO▇▇▇▇▇▇▇▇, as determined in the reasonable judgment of AGCOapplicable, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall will promptly deliver to Trimble the other true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) agreements pursuant to which any such alternative source shall will have committed to provide any portion of the Debt Financing pursuant to this Section 5.5(e). In the event any Alternative Financing is obtained in accordance with this Section 5.5(e), references in this Agreement to the Debt Financing shall be deemed to refer to such Alternative Financing.
(d) Prior , references in this Agreement to the Debt Commitment Letter will include such documents as permitted to be amended, modified or replaced as contemplated by this Section 5.5(e). If the Closing has not occurred on or prior to the date that is 6 months after the Effective Date, the Parties agree to discuss in good faith the status of the Debt Financing and timeline for Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and provided that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries foregoing shall not be required deemed to deliver such certificates or adopt resolutions approving obviate the financing documents, agreements and certificates in connection with the Available Parties’ obligations to pursue Alternative Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d5.5(e). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputation.
Appears in 1 contract
Sources: Contribution Agreement (Matthews International Corp)
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO shall Purchaser will and will cause MIFSA to use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth described in the Debt Commitment Letter and the Debt Fee Letter (including any “flex” provisions in related thereto) on or prior to the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing TermsClosing Date, and AGCO shall will cause MIFSA not permit to, without the Company’s prior written consent, agree to any amendment or modification to be made to, or any waiver of any provision or remedy under, the Debt Commitment Letter or the Debt Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (Ai) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Bridge Financing (including by increasing to an amount that, together with the Purchaser’s and its Affiliates’ cash on hand or available committed credit facilities, would be less than an amount of fees to that would be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available required to fund such fees the cash payments required to consummate the transactions contemplated hereby, (ii) changes the conditions to obtaining the Bridge Financing or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes adds new or additional conditions precedent to obtaining the Bridge Financing, unless such amendment, modification or otherwise expands, amends or modifies any of waiver results in conditions that are in the aggregate substantially equivalent to the conditions in the Debt Commitment Letter and the Debt Fee Letter immediately prior to such amendment, modification or waiver (or that are more favorable to the Committed Financing, in a manner that would, in the case of this subclause Purchaser and its Affiliates) or (B), iii) would reasonably be expected to (xA) delay or prevent or materially delay the Closing or Closing, (B) make the availability funding of the Committed Bridge Financing on the Closing Date taking into account the expected timing (or satisfaction of the Closing Date, taking into account conditions to obtaining the expected timing of the Marketing Period, Bridge Financing) less likely to occur or (yC) adversely impact the ability of AGCO MIFSA or its Affiliates to enforce its rights against the other parties to the Debt Commitment Letter in any material or the definitive agreements with respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”)thereto; provided, however, that subject Purchaser may cause MIFSA to compliance with amend or replace the other provisions of this Section 7.15, AGCO may amend the Debt Commitment Letter or such definitive documents the Debt Fee Letter to correct typographical errors, (i) add additional lenders, arrangers and agents arrangers, bookrunners, syndication agents, managers or reallocate commitments or assign or reassign titles or roles to, or between or among, any similar entities party thereto. AGCO shall promptly deliver to Trimble copies who had not executed the Debt Commitment Letter as of any such amendment, modification or replacement. For purposes the date of this Section 7.15 and Section 5.6 and Agreement or (ii) implement or exercise any “flex” provisions provided in the definitions of, and references to, Debt Fee Letter as in effect on the Financing, any Committed Financing Source, any Financing Source, references date of this Agreement. Purchaser will cause MIFSA to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (AI) maintain in effect the Debt Commitment Letter in accordance with Letter, (II) satisfy (or, if deemed advisable by MIFSA, obtain the terms waiver of, and subject cause each of its Affiliates to satisfy) on a timely basis all conditions to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consentBridge Financing that are within Purchaser and its Affiliates’ control, (xIII) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Debt Commitment Letter or consistent in all material respects with the Debt Commitment Letter and the Debt Fee Letter (including the any “flex” provisions included in contained therein) and (IV) draw a sufficient amount of the Fee Letter) (or on such other terms that are acceptable Financing to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, enable Purchaser to consummate the Committed Financing at or prior to transactions contemplated hereby, in the Closing Date, as applicable, including using its reasonable best efforts to cause event that the lenders conditions set forth in Section 3.01 and Section 3.02 and the other persons committing conditions to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing have been satisfied or, upon funding, would be satisfied or waived. Upon the request of the Company or Seller, Purchaser will keep Seller and the Company reasonably informed on a reasonably current basis of the status of Purchaser’s and MIFSA’s efforts to obtain the Financing, including providing Seller with prompt notice of (x) any repudiation, termination or breach of the Debt Commitment Letter by any party thereto, of which Purchaser becomes aware and (y) of the receipt occurrence of any written notice other event or other communication, in each case from any Committed Financing Source with respect development that would reasonably be expected to any actual or potential material breach, material default, termination or repudiation by any party to materially adversely impact the Commitment Letter or definitive agreements relating to the Committed Financing ability of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able MIFSA to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after Purchaser shall have the date Trimble delivers right to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) substitute the proceeds of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client consummated offerings or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence incurrences of any circumstance referred to in clause debt (x), (yincluding unsecured notes) for all or (z) of the second preceding sentence resulting in any portion of the Committed Bridge Financing becoming unavailable by reducing commitments under the Debt Commitment Letter; provided, that to the extent any such debt has a scheduled special or mandatory redemption right, such right is not exercisable prior to the earlier of the consummation of the Closing Transactions on the Closing Date, the termination of this Agreement or the Outside Date (as it may be extended pursuant to this Agreement). Further, Purchaser shall have the right to substitute commitments in respect of other than as a result of any reductions thereof permitted under Section 7.15(b)), debt financing for all or if any portion of the Committed Bridge Financing otherwise becomes unavailable on from the terms same and/or alternative bona fide third-party financing sources (“Replacement Financing Sources”) so long as (i) all conditions precedent to effectiveness of definitive documentation for such debt financing have been satisfied and the conditions (including the flex provisions) contemplated precedent to funding of such debt financing are in the aggregate, in respect of certainty of funding, substantially equivalent to (or more favorable to the Purchaser and its Affiliates than) the conditions in the Debt Commitment Letter and the Debt Fee Letter, and (ii) prior to funding of any loans thereunder, the commitments in respect of such portion is reasonably required debt financing are subject to effect restrictions on assignment which are in the Closing, AGCO shall use its reasonable best efforts aggregate substantially equivalent to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal or more favorable to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms Purchaser and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, Affiliates than the terms and conditions corresponding restrictions set forth in the Debt Commitment Letter and (any such debt financing which satisfies the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to foregoing clauses (i) agree toand (ii), the “Replacement Financing”; the definitive documentation for any such Replacement Financing, the “Replacement Financing Documents”), of which true, complete and correct copies of such Replacement Financing Documents shall be provided by Purchaser to the Company promptly after such Replacement Financing commitment letter or acceptother Replacement Financing Documents are fully executed. The representations, economic terms that are materially less favorable to AGCOwarranties, as determined in the reasonable judgment covenants and other restrictions of AGCO, than the economic terms Purchaser contained in this Agreement and any other provisions herein with respect to the Bridge Financing and the Debt Commitment Letter shall apply equally to any Replacement Financing and Replacement Financing Documents. Upon the request of the Company or Seller, Purchaser will keep the Seller and the Fee Letter (assuming the application Company reasonably informed on a reasonably current basis of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance status of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted Purchaser’s efforts to be in obtain the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(db) Prior The Company agrees to, and to the Closing, Trimble shall cause its Subsidiaries to use its reasonable best efforts to provide to AGCOto, provide, such assistance (and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective its Subsidiaries’ Representatives, to provide to AGCOsuch assistance), at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that with the Financing as is necessary and customarily required for financings customary with Financings of the type contemplated by the Debt Commitment Letter in connection with (including the Available Financing. Without limitation of the generality of the foregoingsenior notes offering contemplated thereby) and reasonably requested by Purchaser, such reasonable best efforts shall include:
including: (i) upon reasonable noticeparticipation in, participation by management and Representatives of Trimbleassistance with, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and related to the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the including assisting Purchaser with Purchaser’s preparation of materials for rating agency presentations, offering documentscustomary confidential information memoranda, private placement memoranda, prospectuses, bank information offering memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of other customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation marketing materials and information as is reasonably requested in writing deemed necessary by the Financing Sources at least six to complete a successful syndication or offering for delivery to potential syndicate members, purchasers and participants; (6ii) Business Days prior to the Closing Date about participation by senior management, Representatives and advisors of the Company or Trimble in, and assistance with, the preparation of rating agency presentations and meetings with rating agencies, roadshows, due diligence sessions, drafting sessions and meetings with prospective lenders and debt investors (including, for the avoidance of doubt, direct contact with such rating agencies and prospective lenders and debt investors), in each case, at such times as coordinated reasonably in advance thereof; (iii) delivery to Purchaser and its Subsidiaries that Financing Sources as promptly as reasonably practicable of (A) the documentation and other information requested by the Financing Sources reasonably determine is required by regulatory authorities under with respect to (x) applicable “know your know-your-customer” and anti-money laundering rules and regulations, including, without limitation, including the PATRIOT ActAct and (y) the U.S. Treasury Department’s Office of Foreign Assets Control and the Foreign Corrupt Practices Act (and, includingin any event, if at least three (3) Business Days prior to the Closing Date, to the extent requested at least nine (9) days prior to the Closing Date), (B) the Financing Information relating to the Company qualifies as a “legal entity customer” under and (C) such other financial information relating to the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) Company customary or reasonably necessary for the completion of the Financing to the extent reasonably requested by AGCOPurchaser in connection with the preparation of customary offering or information documents to be used for the Financing (which financing information, directing for the avoidance of doubt, may be included in any such offering or information documents used for or distributed in connection with the Financing); (iv) direct its independent auditors to cooperate with respect the Financing consistent with their customary practice, including by providing customary “comfort letters” (including customary “negative assurances”) and customary assistance with the due diligence activities of Purchaser and its Affiliates and the Financing Sources, and customary consents to the Business to provide customary comfort letters inclusion of audit reports in any relevant marketing materials, registration statements and related government filings; (including “negative assurance” comfort and change period comfortv) reasonably requested by AGCO assisting Purchaser with respect to Purchaser’s preparation of pro forma financial information and pro forma financial statements for Mallinckrodt plc and its Subsidiaries on a consolidated basis (including provided that neither the historical Business Company nor any of the Company’s Subsidiaries or Company’s Representatives shall be responsible in any manner for information included in relating to the proposed debt and equity capitalization that is required for such pro forma financial information) and other materials for rating agency presentations, bank information memoranda (confidential and public), offering or private placement memoranda, lender and investor presentations, prospectuses and financial projections for the Company as part of the Business included in any offering documents relating consolidated business of Mallinckrodt plc and its Subsidiaries, and not on a stand-alone basis, to the Committed extent reasonably requested by the Financing that consists of Rule 144A marketed debt Sources, and providing customary management and representation letters to its accountants in relation to its accountants’ providing “comfort letters” in connection with any securities in which the combined financial statements offering made as part of the Business are includedFinancing (“Representation Letters”); (vi) executing and delivering definitive financing documents (but excluding, andfor the avoidance of doubt, if requiredauthorization letters) necessary and customary in connection with the Financing, including customary pledge and security documents, customary certificates (but not solvency certificates), Representation Letters and other customary documents, to the extent reasonably requested by Purchaser; (vii) otherwise reasonably facilitating the pledging of collateral required to be delivered as a condition precedent to the Financing; and (viii) assisting Purchaser and its Affiliates in causing the conditions precedent set forth in Exhibit C to the Debt Commitment Letter to the Bridge Financing to be satisfied.
(c) The Company hereby consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use all of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, provided that such trademarks and logos are used solely in a manner that is not intended to nor or reasonably likely to harm or disparage Trimble the Company or its Subsidiaries or the reputation or goodwill of the Company or its Subsidiaries; provided, further, that Purchaser, the Financing Sources and their respective affiliates and Representatives shall obtain no rights in such logos. Notwithstanding any other provision set forth herein or in any other agreement between the Company and Purchaser (or its Affiliates), the Company agrees that Purchaser and its Affiliates may share customary projections with respect to the Company and its business with the Financing Sources identified in the Debt Commitment Letter, and that Purchaser, its Affiliates and such Financing Sources may share such information with potential Financing Sources in connection with any marketing efforts in connection with the Financing, provided that the recipients of such information agree to customary confidentiality arrangements. Notwithstanding the requirements of Section 10.03(b), (i) neither the Company nor any of its Affiliates or their respective Representatives shall be required to enter into or approve any letter, certificate, document, agreement or instrument or approve or consent to resolutions or consents to approve or authorize the Financing, in each case, that will be effective prior to the Closing (other than Representation Letters), (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Subsidiaries, (iii) nothing herein shall require Seller to cause the delivery of any legal opinions or any certificate as to solvency by Seller or the Company or its Subsidiaries, and (iv) nothing herein shall require any officer, director or other representative of the Company or any of the Company’s Subsidiaries to deliver any certificate or opinion that such officer, director or other representative reasonably believes, in good faith, contains any untrue certifications or opinions, as applicable.
(d) Whether or not the Closing occurs, Purchaser will promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries (other than with respect to any costs associated with preparing quarterly and annual financial statements) in connection with the cooperation of the Company and its Subsidiaries contemplated by Section 10.03(b). Purchaser will indemnify and hold harmless the Company, its Affiliates and their respective Representatives from and against any and all losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with the reputationarrangement of the Financing (including any action taken in accordance with this Section 10.03) and any assistance or activities in connection therewith, in each case other than to the extent any of the foregoing arises from the bad faith, gross negligence or willful misconduct of, or breach of this Agreement by any such Person.
(e) Notwithstanding anything herein to the contrary, in no event shall any failure to obtain any Financing nor any failure to fund any Financing relieve Purchaser of any obligation under or in respect of this Agreement, including the obligation to timely consummate the transactions contemplated by this Agreement as required hereby, and neither the obtaining nor the availability or funding of any Financing shall constitute a condition to Purchaser’s obligation to timely consummate the transactions contemplated by this Agreement as required hereby. Purchaser reaffirms its obligation to consummate the transactions contemplated by this Agreement irrespective and independently of the availability of the Financing, subject to the terms and conditions set forth herein.
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO Purchaser shall use its reasonable best efforts to obtain the Committed Debt Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth described in the Debt Commitment Letter (including and any “flex” provisions in the related Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO . Purchaser shall not permit any amendment amendment, modification or modification supplement to be made to, or any waiver of any provision or remedy under, the Debt Commitment Letter or the any related Fee Letter (or following entry into definitive documents relating to the Committed FinancingLetter, such definitive documents) if such amendment, modification or waiver (Ai) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Debt Financing (including by increasing changing the amount of fees to be paid or original issue discount unless discount), when taken together with Purchaser’s cash on hand, to an amount below the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available required to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A))satisfy Purchaser’s obligations under this Agreement, or (Bii) imposes new or additional conditions or other terms or otherwise expands, amends or modifies any of the conditions to the Committed Financing, receipt of the Debt Financing or other terms in a manner that would, in the case of this subclause (B), could reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (or prevent the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”)Closing; provided, however, that subject to compliance Purchaser may, after consultation with the other provisions of this Section 7.15Seller, AGCO may replace or amend the Debt Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and lead arrangers, bookrunners, syndication agents or reallocate commitments similar entities who had not executed the Debt Commitment Letter as of the date hereof so long as such action would not reasonably be expected to materially delay or assign or reassign titles or roles to, or between or among, any entities party theretoprevent the Closing. AGCO shall promptly deliver Any reference in this Agreement to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to (x) “Committed Debt Financing” shall include the financing contemplated by the Debt Commitment Letter (as amended or definitive financing documents related thereto) as permitted by modified in compliance with this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, 7.01 and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customerFee Letter” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies “Debt Commitment Letter shall include such documents as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors amended or modified in compliance with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputation7.01.
Appears in 1 contract
Financing. (a) Subject a. Notwithstanding anything to the terms and conditions of contrary contained in this Agreement, AGCO shall use its reasonable best efforts each of the parties hereto: (i) agrees that it will not bring or support any person in any action, suit, proceeding, cause of action, claim, cross-claim or third-party claim of any kind or description, whether in law or in equity, whether in contract or in tort or otherwise, against any of lender under any existing loan facility of Parent or Merger Sub or provider of any commitment for any loan facility to obtain Parent or Merger Sub (the Committed “Financing Sources”) in any way relating to this Agreement or any of the transactions contemplated by this Agreement, including, but not limited to, any dispute arising out of or relating in any way to any commitment letters or any loan agreement related to any financing, or financing commitment, provided or to be provided by any Financing Source (taking into account any reductions such financing a “Financing” and any such agreement or commitment a “Facility Commitment”) or the performance thereof pursuant to Section 7.15(b)(A)or the financings contemplated thereby, in any forum other than the federal and New York state courts located in the Borough of Manhattan within the City of New York; (ii) on the terms and conditions agrees that, except as specifically set forth in the Commitment Letter any Facility Commitment, all claims or causes of action (including any “flex” provisions whether at law, in the Fee Letterequity, in contract, in tort or otherwise) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies against any of the conditions Financing Sources in any way relating to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing any Facility Commitment or the availability performance thereof or the financings contemplated thereby, shall be exclusively governed by, and construed in accordance with, the internal laws of the Committed Financing on the Closing Date taking into account the expected timing State of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO mayNew York, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount giving effect to principles or rules or conflict of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), laws to the extent that such principles or rules would require or permit the remaining amount application of laws of another jurisdiction; and (iii) hereby irrevocably and unconditionally waives any right such party may have to a trial by jury in respect of any litigation (whether in law or in equity, whether in contract or in tort or otherwise) directly or indirectly arising out of or relating in any way to any Facility Commitment or the Committed Financing under performance thereof or the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing financings contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior thereby.
b. Prior to the Closing Date, as applicableif Parent wishes to borrow cash to fund the Merger Consideration from a reputable bank, including using the Company shall, at Parent’s sole expense, cause its Subsidiaries to, and shall use commercially reasonable best efforts to cause its Representatives (including its legal and accounting Representatives) to, provide reasonable cooperation in connection with the lenders arrangement of the such financing as may be reasonably requested by Parent, including without limitation (i) providing reasonable and customary due diligence materials to the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter sources of such financing and any definitive agreements with respect thereto. Trimble acknowledges rating agencies, including financial statements and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay offinancial and other information, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As as soon as reasonably practicable after the date Trimble delivers to AGCO a written requestrequest therefor, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined reasonably and customarily required in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or connection with such financing; (ii) seek any equity investment or any offering, placement, sale or other issuance assisting Parent with the preparation of any equity securities (it being understood rating agency presentations and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true similar documents and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter materials in connection with the Available Financing. Without limitation financing and permitting the use of the generality of Company name and logo in the foregoing, such reasonable best efforts shall include:
offering materials; (iiii) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) participating in a reasonable number of meetings, road shows, presentations, conference calls, presentations and due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financingfinancing, at reasonable times and locations to be mutually agreed;
(iiiv) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries assisting in the possession preparation of Trimblecustomary offering materials and private placement memorandum and/or bank information memorandum with respect to the financing, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in Parent; and (v) facilitating and providing pertinent information for the preparation pledging of materials collateral for rating agency presentationsthe financing (the “Required Financial Information”); provided, offering documents, private placement memoranda, prospectuses, bank information memoranda that: (1) such requested assistance and similar documents cooperation does not unreasonably interfere with the ongoing operation of the Company and its Subsidiaries and does not create undue burden for the operation of the Company; (2) the Company shall not be required to pay any commitment or other fee or incur any liability or expense in connection with any financing; (3) the Available Financing (or effectiveness of any replacement thereof permitted hereunder), including documentation executed by the delivery of customary authorization and representation letters Company shall be subject to the extent contemplated by or customary in consummation of the Available Financing and a supplement Closing Date; (4) the Company shall not be required to provide access to or alternative version that does not include disclose information that constitutes material non-public information regarding Trimble to any party or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for entity unless such Required Information to remain Compliant;
(iii) person or entity is bound by confidentiality obligations reasonably satisfactory to the extent Company; and (5) the Company shall not be required to provide access to or disclose information where the Company reasonably requested by AGCO, (A) assisting in determines that such access or disclosure would jeopardize the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation attorney-client privilege of the Company or any of its Subsidiaries under or contravene ant Law or any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred contract to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of which the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party party. Notwithstanding anything to the extent not entered into in contemplation of the provisions contrary in this Agreement, the Required Financial Information required to be delivered pursuant to this Section 7.15(d6.11(e) shall be prepared in accordance with GAAP (except, in the case of unaudited financial statements, for the absence of footnotes and normal, recurring year-end adjustments). Trimble hereby consents .
c. Parent shall, and shall cause its affiliates to, (i) promptly upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs incurred by the Company in connection with cooperation provided for in Section 6.11(a) (such reimbursement to be made promptly and in event within three business days of delivery of reasonably acceptable documentation evidencing such expenses); and (ii) indemnify and hold harmless the reasonable use of its Company and its Subsidiaries’ trademarks Representatives from and logos against any and all Losses (as defined below) suffered or incurred by them in connection with the Available Financing; providedarrangement of any financing, howeverand any information utilized in connection therewith. All non-public or otherwise confidential information regarding the Company and its Subsidiaries obtained by Parent, that such trademarks its affiliates or their respective Representatives pursuant to this Section 6.11 shall be subject to the terms of the Confidentiality Agreement. Loss shall mean any include any loss, damage, injury, liability, claim, demand, settlement, judgment, award, fine, penalty, tax, fee (including reasonable attorney’s fees), charge, cost (including cost of investigation) or expense of any nature.
d. For the avoidance of doubt, the obligation of Parent and logos are used solely in a manner that Merger Sub to close the transactions contemplated by this Agreement is not intended conditioned upon the consummation of any financing and, accordingly, the parties agree that a failure of Parent and Merger Sub to nor reasonably likely close the transactions contemplated by this Agreement resulting from a failure or inability to harm or disparage Trimble or consummate any financing constitutes a breach for purposes of its Subsidiaries or the reputationthis Agreement, notwithstanding compliance by Parent with Section 6.11.
Appears in 1 contract
Sources: Merger Agreement (Epocrates Inc)
Financing. (a) Subject Notwithstanding anything in this Agreement to the terms contrary, Purchaser acknowledges and conditions 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 this Agreementthe Debt Financing is not a condition to Closing or the consummation of the Transactions.
(b) Purchaser shall, AGCO and shall cause its controlled Affiliates to, use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary to arrange, consummate and obtain the Committed Debt Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) 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 Debt Financing Commitment Letter on the terms and conditions contained therein (including any including, 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 such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall Purchaser that would not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces reduce the aggregate amount of the Committed 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 (or any portion of the Debt Financing thereunder) without the prior written consent of Seller that (i) reduces (or could have the effect of 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 unless the Committed Financing is increased by a corresponding discount) to an amount or the Committed Financing is otherwise made less than, when taken together with cash available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents Purchaser, the amount necessary to satisfy the Financing Purposes, (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (Bii) imposes new or additional conditions to the receipt of all or otherwise 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 expected to (A) delay, prevent, impede or make less likely the funding of the Debt Financing (or satisfaction of the conditions to the Committed Debt Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account or otherwise prevent, delay or impair the expected timing ability or likelihood of Purchaser to timely consummate the Closing Date, taking into account the expected timing of the Marketing Period, Transactions or (yB) adversely impact the ability of AGCO Purchaser to enforce its rights against the Debt Financing Sources or any other parties to the Debt Financing or the definitive agreements with respect thereto or (iv) relieves or releases any Debt Financing Source from its obligations under the Debt Financing Commitment Letter (other than as expressly provided for in any material respect (the terms Debt Financing Commitment as in effect on the date hereof in connection with the designation of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”additional arrangers); provided, that, for the avoidance of doubt, Purchaser may amend, restate or modify the Debt Financing Commitment to (1) add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities that subject have not executed the Debt Financing Commitment as of the date hereof and to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or grant to such definitive documents Debt Financing Sources such approval rights as are customarily granted to correct typographical errors, add additional lenders, arrangers and lead arrangers, bookrunners, syndication agents or reallocate similar entities, (2) increase the commitments or assign or reassign titles or roles tothe amount of indebtedness thereunder, (3) amends the definitive agreements with respect to the Debt Financing to give effect to any “market flex” terms contained in the Debt Financing Commitment, or between or among(4) amend titles, any entities party theretoallocations and fee sharing arrangements with respect to existing and additional Debt Financing Sources. AGCO Purchaser shall promptly deliver to Trimble copies of any such amendment, modification modification, supplement or replacement. For purposes waiver to the Debt Financing Commitment or Fee Letter to Seller (which may, in the case of this the Fee Letter, be redacted as provided in Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced5.7).
(bd) AGCO If all or any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Financing Commitment (including the “market flex” provisions set forth in the 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 in writing thereof as promptly as practicable after obtaining knowledge thereof, (ii) use its reasonable best efforts (taking into account the anticipated timing of the Closing Date to obtain and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to alternative financing in an amount equal to such portion of the Committed Debt Financing from the same or alternative debt financing sources (“Alternative Financing”) on terms and conditions no less favorable to Purchaser, taken as a whole, than as contemplated by the Debt Financing Commitment Letter on the terms and conditions contained in the Commitment Letter (including taking into account the “market flex” provisions included set forth in the Fee Letter) (or on such other terms that are acceptable otherwise sufficient to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, enable Purchaser to consummate the Committed Financing at or prior to the Closing DateTransactions, as applicable, including using and (iii) use its reasonable best efforts to cause 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 lenders new commitment letter and the other persons committing to fund related fee letters (which may, in the Committed Financing on the Closing Date (the “Committed Financing Sources”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 (DA) enforce its rights under “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 Letter to the extent not superseded by a new debt financing commitment, as the case may be, at the time in question and any definitive agreements with respect thereto. Trimble acknowledges new debt financing commitment to the extent then in effect, and agrees that AGCO (B) “Debt Financing” shall not be required include and mean the financing contemplated by the Debt Financing Commitment as modified pursuant to consummate the Available Financing before the final day of the Marketing Periodimmediately preceding clause (A).
(ce) AGCO shall Purchaser shall, as promptly as practicable after obtaining knowledge thereof, give Trimble prompt Seller written notice of any (xi) material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any breach or default default) related to the Debt Financing, (ii) actual or threatened (in writing) withdrawal, repudiation or termination by any party to the Debt Financing Commitment Letter or definitive agreements relating related to the Committed Debt Financing, (iii) material dispute or disagreement between or among any parties to the Debt Financing Commitment or definitive agreements related to the Debt Financing with respect to the obligation to fund the Debt Financing or the amount of which AGCO has Knowledge if such breach the Debt Financing to be funded at the Closing, (iv) without limiting any of Seller’s rights hereunder, amendment or default would result in a material delay modification of, or in any way limitwaiver under, the availability of Debt Financing Commitment and the Committed Debt Financing, (yv) of notification from one or more parties to the receipt of any written notice Debt Financing Commitment or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or any definitive agreements relating related to the Committed Debt Financing of any provisions of the Commitment Letter failure or definitive agreements relating inability to satisfy one or more conditions precedent to the Committed Financing if such breach, default, termination or repudiation would result in a material delay ofDebt Financing, or in any way limit(vi) change, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith circumstance or event that causes Purchaser to believe that it will shall not be able to timely obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Debt Financing. As soon as reasonably practicable practicable, but in any event within three (3) Business Days after the date Trimble Seller delivers to AGCO Purchaser a written request, AGCO Purchaser shall provide any information reasonably requested by Trimble Seller relating to any circumstance referred to in clause clauses (x), i) – (y) or (zvi) of the immediately preceding sentence; provided that AGCO . Purchaser shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used keep Seller informed on a reasonably current basis of the status of its reasonable best efforts to disclose such information arrange the Debt Financing contemplated by the Debt Financing Commitment. In the event that Purchaser commences an enforcement action to enforce its rights under any agreement in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) respect of the second preceding sentence resulting in Debt Financing or to cause any Debt Financing Source to fund all or any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b))Debt Financing, or if any portion Purchaser shall keep Seller reasonably informed of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence status of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financingenforcement action.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputation
Appears in 1 contract
Financing. (a) Subject Each of Parent, REIT Merger Sub, OP Merger Sub and DownREIT Merger Sub shall use, and shall cause the Parent Subsidiaries to the terms and conditions of this Agreementuse, AGCO 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 Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth (including, to the extent required, the full exercise of any “market flex” provisions) described in the Commitment Letter Financing Commitments (including and any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Termsrelated fee letter), and AGCO shall not permit any amendment amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) Financing Commitments if such amendment, supplement, replacement modification or waiver (Ai) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicableFinancing Commitments, reduces (or could reasonably be expected to have the effect of reducing) the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless (A) the Committed Debt Financing or the Equity Financing is increased by a corresponding amount or the Committed Debt Financing is otherwise made available at Closing to fund such fees or original issue discountdiscount and (B) from that contemplated after giving effect to such reduction and any of the transactions referred to in clause (A) above, the Commitment Letter or such definitive documents (other than representation and warranty set forth in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise Section 5.7 shall be true and correct in accordance with Section 7.15(b)(A)all material respects), or (Bii) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed FinancingFinancing in a manner that makes them more onerous to satisfy on the Closing Date, or (iii) expands, amends or modifies any other provision of the Financing Commitments, in each case, in a manner that would, in the case of this subclause (B), would reasonably be expected to (x) delay or prevent or materially delay make less likely the Closing or the availability funding of the Committed full amount of the Financing (or satisfaction of the conditions to the Financing) on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO Parent or OP Merger Sub to enforce its rights against the other parties to the Debt Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses provided that (A1) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with clauses (i), (ii) and (iii) above and the other provisions of this Section 7.157.15(a), AGCO Parent, REIT Merger Sub, OP Merger Sub and DownREIT Merger Sub may amend the Debt Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers lead and other arrangers, bookrunners, syndication and other agents or reallocate commitments or assign or reassign titles or roles toand other similar entities that have not executed the Debt Commitment Letter as of the date hereof so long as such added lenders, lead and other arrangers, bookrunners, syndication and other agents and other similar entities are reasonably acceptable to the Company (it being acknowledged and agreed that the list of lenders, lead and other arrangers, bookrunners, syndication and other agents and other similar entities set forth on Exhibit C to the Debt Commitment Letter, or between their respective Affiliates, are deemed reasonably acceptable to the Company and do not require the Company’s consent), (2) subject to compliance with Section 7.15(h), Parent, REIT Merger Sub, OP Merger Sub and DownREIT Merger Sub may amend the Equity Commitment Letters (to the extent permitted therein to be amended in accordance with Section 7.15(h) hereof) and the Guarantee to add or amongsubstitute additional Equity Investors, and (3) subject to compliance with Section 7.15(b) below, Parent may replace all or any entities party theretopart of the Debt Financing with Alternate Financing). AGCO Parent shall promptly deliver to Trimble Company copies of any such amendment, supplement, waiver, consent, modification or replacement. For purposes replacement in respect of this Section 7.15 and Section 5.6 the applicable Equity Commitment Letter and the definitions ofDebt Commitment Letter and, at the written request of Company, provide Company with such information and documentation as shall be reasonably requested by Company to allow Company to monitor the progress of such financing activities (subject to compliance by Parent with any confidentiality provisions or restrictions set forth in the Debt Commitment Letter or the definitive documents relating to the Debt Financing). Subject in each case to Parent’s obligation and right with respect to adding or substituting additional Equity Investors in accordance with Section 7.15(h) and additional lenders, arrangers, bookrunners and agents as set forth above and any Alternate Financing set forth in Section 7.15(b) below, Parent, REIT Merger Sub, OP Merger Sub and DownREIT Merger Sub shall not agree to the withdrawal, termination, repudiation, reduction or rescission of any commitment in respect of the Equity Financing or Debt Financing without the prior written consent of the Company, and references to, shall not release or consent to the Financing, any Committed termination of the obligations of the Equity Investors under the Equity Commitment Letters or of Financing Source, any Financing Source, references to “Committed Financing” shall include Sources under the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Debt Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO Each of Parent, REIT Merger Sub, OP Merger Sub and DownREIT Merger Sub shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the Financing on the terms (taking into account including the anticipated timing of market “flex” provisions), and subject only to the Closing Date and conditions set forth in, the Marketing PeriodFinancing Commitments, including using reasonable best efforts (i) to (A) maintain in full force and effect the Commitment Letter in accordance with the terms and Financing Commitments (subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) right to enter into other debt financing arrangements Alternate Financing set forth below); (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”ii) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, promptly negotiate and enter into on the Closing Date definitive agreements with respect to the Committed Debt Financing contemplated by the Commitment Letter on the terms and conditions (including, as necessary, agreeing to any requested changes to the commitments thereunder in accordance with any “market flex” provisions) contained in the Commitment Letter Financing Commitments, in each case subject to the requirements and restrictions in Section 7.15(a); (including the “flex” provisions included in the Fee Letteriii) to satisfy (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (Cseek a waiver of) satisfy all conditions to funding in the Commitment Letter Financing Commitments, any related fee letter and such definitive agreements with respect relating thereto that are within its control and, subject to satisfaction of all conditions to funding, and in the Equity Commitment Letters and to consummate the Committed Financing at or prior to the Closing DateClosing; (iv) not take any action, as applicableor omit to take any action, including using its reasonable best efforts that would reasonably be expected to cause prevent, materially delay, or prohibit the lenders and funding of the other persons committing to fund the Committed Debt Financing on the Closing Date (the “Committed Financing Sources”) at Closing; and (Dv) enforce its rights under the Debt Commitment Letter and any the definitive agreements (if any) with respect thereto. Trimble acknowledges and agrees that AGCO ; provided, for purposes of this Section 7.15, “reasonable best efforts” shall not require Parent, REIT Merger Sub, OP Merger Sub or DownREIT Merger Sub to commence litigation against the Financing Sources and no provision hereof shall be required deemed to consummate require Parent, REIT Merger Sub, OP Merger Sub and DownREIT Merger Sub to commence litigation against the Available Financing before the final day of the Marketing Period.
(c) AGCO Sources. Parent, REIT Merger Sub, OP Merger Sub and DownREIT Merger Sub shall give Trimble Company reasonably prompt written notice (xand in any event within two Business Days) (A) of any breach or default by any party to any of the Commitment Letter Financing Commitments or definitive agreements relating related to the Committed Financing of which AGCO has Knowledge if such breach Parent, REIT Merger Sub, OP Merger Sub or default would result in a material delay of, or in any way limit, the availability of the Committed FinancingDownREIT Merger Sub becomes aware, (yB) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual material dispute or potential material breach, material default, termination disagreement between or repudiation by among any party parties to any of the Commitment Letter Financing Commitments or definitive agreements relating related to the Committed Financing of any provisions with respect to the obligation to fund the Financing or the amount of the Commitment Letter or definitive agreements relating Financing to the Committed Financing if such breachbe funded at Closing, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (zC) if at any time for any reason AGCO Parent, REIT Merger Sub, OP Merger Sub or DownREIT Merger Sub believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources sources contemplated by any of the Commitment Letter Financing Commitments or definitive agreements relating related to the Committed Financing. As soon as Upon the request of Company, Parent, REIT Merger Sub, OP Merger Sub and DownREIT Merger Sub shall reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall promptly provide any information reasonably requested by Trimble Company and reasonably available relating to any circumstance referred to in clause the immediately preceding sentence, except to the extent providing such information is protected by attorney-client privilege or would result in the breach of any confidentiality obligations. If any portion of the Debt Financing otherwise becomes unavailable and such portion is required to pay all amounts required to be paid in connection with the Mergers and the transactions contemplated by this Agreement (xincluding to fund the REIT Merger Consideration, the OP Merger Consideration and the DownREIT Merger Consideration, to repay or refinance the debt of the Company and its Subsidiaries contemplated by this Agreement or the Debt Commitment Letter, and to pay all other fees, expenses and other amounts contemplated to be paid by Parent, the REIT Surviving Entity, the Partnership Surviving Entity or the DownREIT Surviving Entity pursuant to this Agreement and the Financings), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required Parent elects or desires to share any information with Trimble that is subject to attorney-client replace all or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b))Debt Financing, or if any portion of the Committed Financing otherwise becomes unavailable on the terms then, in each case, Parent, REIT Merger Sub, OP Merger Sub and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO DownREIT Merger Sub shall use its their reasonable best efforts to arrange and obtain in replacement thereof alternative financing (any such financing, “Alternative Alternate Financing”) from alternative sources in an amount at least equal sufficient to consummate the unavailable portion thereofMergers, as the case may Financing and the transactions contemplated by this Agreement and the Financing Commitments (including payment of the REIT Merger Consideration, the OP Merger Consideration, the DownREIT Merger Consideration, repayment or refinancing of debt of Company, Company OP and the Company Subsidiaries contemplated by this Agreement or the Debt Commitment Letter, and all other fees, expenses and other amounts contemplated to be (taking into account any reductions thereof paid by Parent, the REIT Surviving Entity, the Partnership Surviving Entity or the DownREIT Surviving Entity pursuant to Section 7.15(b)(A)), this Agreement and the Financing) with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined that are in the reasonable judgment compliance with Section 7.15(a) of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and this Agreement as promptly as reasonably practicable following the occurrence of such event. For Parent shall keep Company informed on a reasonably current basis in reasonable detail of the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any status of its Affiliates efforts to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek arrange any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing)Alternate Financing. AGCO Parent shall deliver to Trimble true Company true, correct and complete copies of all written agreements, arrangements or contracts understandings (including any engagement letters, side letters or and fee letters (subject to customary redactions) redaction of fee letters) amounts, pricing terms, pricing caps, “market flex” provisions and other economic terms required by the Financing Sources which do not affect the conditionality of the Debt Financing or would not reasonably be expected to result in any portion of the Financing contemplated thereby to be unavailable on the date on which the Closing should occur pursuant to which Section 2.2)) related to any such alternative source shall have committed to provide any Alternative Debt Financing.
(dc) Prior Subject to applicable Law, prior to the ClosingClosing Date, Trimble Company shall use its commercially reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its commercially reasonable best efforts to cause each of the Company Subsidiaries and each of its officers, directors, employees, agents, attorneys, accountants and advisors to provide, to Parent, the REIT Surviving Entity, the Partnership Surviving Entity or the DownREIT Surviving Entity and their respective Subsidiaries’ RepresentativesAffiliates and any transferees of assets in connection with any Asset Transfer (the “Asset Transferees”), to provide to AGCOin each case, at AGCOParent’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter Parent in connection with the Available Financing. Without limitation arrangement, syndication and consummation of the generality Debt Financing and/or any debt financing to be obtained by the applicable asset transferees in connection with any Asset Transfer (the “Asset Financing”), in each case, to be effective at or following the Closing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Company or the foregoingCompany Subsidiaries), such including using commercially reasonable best efforts shall include:
to (i) upon reasonable noticecause the Company’s senior management teams, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) , upon reasonable notice and at reasonable times, participate in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions rating agency presentations, meetings and presentations with prospective lenders, (ii) assist with, and designate one or more members of appropriate personnel of Company to, on reasonable notice and at reasonable times, participate in, the preparation of customary offering and syndication documents and materials, including bank information memoranda, bank syndication material and packages, lender and investor presentations, rating agencies agency materials and potential presentations and similar documents and materials, in connection with the Financing or the Asset Financing, and provide reasonable and customary authorization letters to the Financing Sources and any financing sources in respect of the Asset Financing (the “Asset Financing Sources”) authorizing the distribution of information to prospective lenders and other containing customary syndication activities information, and identifying the portion of any such information that constitutes material non-public information, (iii) furnish Parent reasonably promptly following Parent’s reasonable request (which request shall state with reasonable specificity the information requested) with (A) the historical financial statements of Company as may be required by the Financing Sources or the Asset Financing Sources in connection with the Debt Financing or the Asset Financing (subject to the immediately following proviso, the “Required Financial Information”); provided that in no event will the Required Financial Information be deemed to include or shall Company otherwise be required to provide projections, pro forma financial statements or pro forma adjustments related to the Debt Financing or the Asset Financing, and (B) property-level financial information and updates thereto, (iv) reasonably cooperating with the marketing efforts of AGCO Parent and its financing sources and the Asset Financing SourcesSources for any debt raised by Parent or the Asset Transferees to complete the Mergers, (v) request Company’s independent auditors to cooperate with Parent’s independent auditors and the Asset Transferee’s independent auditors, participate in each caseaccounting due diligence sessions and use reasonable efforts to obtain accountant’s comfort letters and consents from Company’s independent auditors, (vi) assist in the preparation of the Financing agreements, the Asset Financing agreements and related definitive documents including certificates, as may be requested by Parent or the Asset Transferees, (vii) cooperate with Parent and the Asset Transferees in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(iirepayment in connection with Closing of each Existing Loan set forth on Section 7.15(c)(vii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the BusinessCompany Disclosure Letter including delivering such payoff, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance or similar notices under such Existing Loans as may be reasonably requested by AGCO in Parent or the preparation Asset Transferees, (viii) to the extent constituting a condition precedent under the Debt Commitment Letter, use commercially reasonable efforts to facilitate the pledging of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required collateral in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version Debt Financing; provided that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for no such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document action shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause Closing, (iiix) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) at least five Business Days prior to the Closing DateClosing, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably extent requested in writing by the Financing Sources Parent at least six (6) ten Business Days prior to the Closing Date Closing, provide the documentation and other information about Company and the Company or Trimble and its Subsidiaries that the Financing Sources as is reasonably determine is required by regulatory authorities under requested with respect to applicable “know your customer” ”, beneficial ownership and anti-money laundering rules and regulations, including, without limitation, regulations including the USA PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vix) to the extent cooperate with providing financial and property information reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon and the Asset Financing, including updates to information previously provided to the Financing Sources and Asset Financing Sources and property-level financial information, (xi) assist with the preparation and provision of such ALTUS reports as Parent may reasonably request, and (xii) take all corporate actions, subject to the occurrence of the Closing Date Closing, reasonably requested by Parent or the Asset Transferees to permit the consummation of the Financing and the Asset Financing and to permit the proceeds thereof to be made available at the Closing. Notwithstanding anything to the contrary in this Section 7.15(c), (D1) be required to take any action that nothing will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (require cooperation to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that it would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection interfere unreasonably with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputationbusi
Appears in 1 contract
Sources: Merger Agreement (Education Realty Operating Partnership L P)
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO shall use its reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms each of Parent and conditions set forth in the Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall each Merger Sub will not permit any amendment or modification to be made to, or any waiver of any provision underor remedy pursuant to, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) Letters if such amendment, modification or waiver would, or would reasonably be expected to, (Ai) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces reduce the aggregate amount of the Committed Financing (other than as expressly set forth therein); (ii) impose new or additional conditions or other terms or otherwise expand, amend or modify any of the conditions to the receipt of the Financing or any other terms to the Financing in a manner that would reasonably be expected to prevent, impede or materially delay the Closing Date or adversely impact the ability of Parent to consummate the Merger and the other transactions contemplated by this Agreement or (ii) adversely impact the ability of Parent, the Merger Subs or the Company, as applicable, to enforce its rights against the Financing Sources under the Debt Commitment Letter or the Guarantors under the Equity Commitment Letter.
(b) Subject to the terms and conditions of this Agreement, each of Parent and each Merger Sub will use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper and advisable to arrange and obtain the Financing on the terms and conditions described in the Commitment Letters, including using its reasonable best efforts to (i) maintain in effect the Commitment Letters and the Debt Fee Letters in accordance with the terms and subject to the conditions thereof (or on such other terms as are permitted by increasing Section 6.11 or Section 6.17 or agreed to in writing by the Company), (ii) enter into definitive agreements with respect to the Debt Financing, on the terms and conditions materially consistent with the terms contained in the Debt Commitment Letter (including any “flex” provisions applicable thereto set forth in the Debt Fee Letters), (iii) satisfy on a timely basis all conditions to funding that are applicable to Parent and the Merger Subs in the Commitment Letters that are within their control (except that such obligation shall not be breached in respect of any condition where the failure to be so satisfied is a direct result of any of the Company’s failure to furnish the information set forth in Section 6.17, notwithstanding Parent’s reasonable best efforts), (iv) comply with its obligations pursuant to the Commitment Letters and (v) enforce its rights pursuant to the Commitment Letters. In the event that all conditions contained in the Commitment Letters (other than, with respect to the Debt Financing, the availability of the Equity Financing) have been satisfied and Parent is required to consummate the Closing pursuant to Section 1.2, Parent shall use reasonable best efforts to cause each Financing Source and shall cause each Guarantor to fund its respective committed portion of the Financing required to consummate the transactions contemplated by this Agreement and to pay related fees and expenses on the Closing Date (including subject to Section 9.10(b), by promptly commencing a litigation proceeding against any breaching Financing Source or Guarantor to compel such breaching Financing Source or Guarantor to provide its respective committed portion of the Financing, provided that Parent shall control all aspects of such proceeding, including litigation strategy and selection of counsel); provided that, notwithstanding the foregoing, it is explicitly agreed that the right of the Parent to seek specific performance or other equitable remedies in connection with enforcing the Financing Sources’ obligation to cause the Debt Financing to be funded shall be subject to the requirements that (A) the Equity Financing has been funded in accordance with the terms thereof or will be funded in accordance with the terms thereof at the Closing if the Debt Financing is funded at the Closing and (B) Parent has irrevocably confirmed that if the Debt Financing and Equity Financing are funded, then it would take such actions that are within its control to cause the Closing to occur. In addition, Parent shall have the right to substitute other debt financing for all or any portion of the Debt Financing contemplated by the Debt Commitment Letter from the same and/or alternative financing sources so long as (x) such substitution does not, as compared to the Debt Financing contemplated by the Debt Commitment Letter and Debt Fee Letters on the date of this Agreement, increase the amount of fees Debt Financing required to be paid or original issue discount unless funded on the Committed Financing is increased Closing Date to consummate the Merger and the other transactions contemplated by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A))this Agreement, or (B) imposes impose new or additional conditions or otherwise expands, amends or modifies expand any of the conditions to the Committed Financing, receipt of the Debt Financing in a manner that would, in the case of this subclause (B), could reasonably be expected to (x1) prevent prevent, delay or materially delay impair the Closing or ability of Parent to consummate the availability of Merger and the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, other transactions contemplated by this Agreement or (y2) adversely impact the ability of AGCO Parent or any Merger Sub to enforce its rights against the other parties to the Debt Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), y) the “Permitted Company shall have consented in writing to such substituted Debt Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or (such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) consent not to be amendedunreasonably withheld, modified conditioned or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaceddelayed).
(bc) AGCO In furtherance and not in limitation of the foregoing, in the event that any portion of the Debt Financing becomes unavailable in the manner or from the sources contemplated in the Debt Commitment Letter, Parent shall use its reasonable best efforts to, as promptly as practicable following the occurrence of such event, (taking into account i) obtain alternative financing from alternative sources in an amount sufficient to consummate the anticipated timing of the Closing Date Merger and the Marketing Period) to (A) maintain transactions contemplated by this Agreement upon conditions not less favorable in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of to Parent, Merger Subs and the Committed Financing by the amount of Cash on hand available to AGCOSecond Step Surviving Corporation, taken as a whole, than those in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Debt Commitment Letter (including the “flex” provisions included contained in the Debt Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its SubsidiariesLetters), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, event (and in any event no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, later than the economic terms contained in the Commitment Letter and the Fee Letter Closing Date) (assuming the application of the “market flex” provisions) or Alternate Debt Financing”), and (ii) seek any equity investment obtain one or any offeringmore new financing commitment letters with respect to such Alternate Debt Financing (the “New Debt Commitment Letters”), placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in which New Debt Commitment Letters will replace the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the existing Debt Commitment Letter in whole or in part. Parent shall promptly provide the Company with a copy of any New Debt Commitment Letters and any fee letter in connection with therewith (redacted to omit the Available Financing. Without limitation numerical amounts and “flex provisions” provided therein and any other customarily redacted provisions thereof, none of which would adversely affect the amount, conditionality, availability or termination of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Alternate Debt Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of funded at the Required Information and other financial and other pertinent information regarding Closing). In the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or event that any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCONew Debt Commitment Letters are obtained, (A) assisting any reference in this Agreement to the preparation of“Financing Commitment Letters” or the “Debt Commitment Letter” will be deemed to include the Debt Commitment Letter to the extent not superseded by one or more New Debt Commitment Letters at the time in question and any New Debt Commitment Letters to the extent then in effect, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations any reference in effect with respect this Agreement to the Business;
(iv) assisting with “Debt Financing” means the discharge and termination of any Liens on debt financing contemplated by the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released Debt Commitment Letter as modified pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputationforegoing.
Appears in 1 contract
Sources: Merger Agreement (Diligent Corp)
Financing. (a) (i) Subject to the terms and conditions of this Agreement, AGCO each of Parent and Merger Sub shall use its reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth (including the flex provisions) described in the Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing TermsLetters, and AGCO the contribution contemplated by the Rollover Letter pursuant to the terms thereof, and shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter Financing Letters or the Fee Rollover Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicableFinancing Letters, reduces (or could have the effect of reducing) the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless (x) the Committed Debt Financing or the Equity Financing is increased by a corresponding amount or the Committed Debt Financing is otherwise made available to fund such fees or original issue discountdiscount and (y) from that contemplated after giving effect to any of the transactions referred to in clause (x) above, the Commitment Letter representation and warranty set forth in Section 4.7 shall be true and correct) or, with respect to the Rollover Letter, reduces the amount of Company Common Stock to be contributed thereby unless (x) the Debt Financing or the Equity Financing is increased by a corresponding amount and (y) after giving effect to any of the transactions referred to in clause (x) above, the representation and warranty set forth in Section 4.7 shall be true and correct as of the time of such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), transaction or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed FinancingFinancing or the contribution contemplated by the Rollover Letter, or otherwise expands, amends or modifies any other provision of the Financing Letters or the Rollover Letter, in a manner that would, in the case of this subclause (B), would reasonably be expected to (x) delay or prevent or materially delay make less likely the Closing funding of the Financing or the availability contribution contemplated by the Rollover Letter (or satisfaction of the Committed conditions to the Financing or the contribution contemplated by the Rollover Letter) on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO Parent, Merger Sub or the Company, as applicable, to enforce its rights against the other parties to the Commitment Letter Financing Letters or the definitive agreements with respect thereto or the Rollover Letter, in each of clauses (x) and (y) in any material respect (the terms of any such amendmentprovided that, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.155.5(a), AGCO Parent and Merger Sub may amend the Debt Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers arrangers, bookrunners and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party theretoagents). AGCO Parent shall promptly deliver to Trimble the Company copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source5.5, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) Financing Letters as permitted by this Section 7.15(a) to be amended, modified or replaced by this Section 5.5(a), references to the “Rollover Investment” shall include the financing contemplated by the Rollover Letter as permitted to be amended, modified or replaced by this Section 5.5(a) and references to “Debt Commitment Letter” shall include such document documents as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing replaced by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing5.5(a). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputation
Appears in 1 contract
Sources: Merger Agreement (J Crew Group Inc)
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO Buyer shall use its all reasonable best efforts to arrange, consummate and obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth described in the Commitment Letter, including using all reasonable best efforts (i) to maintain in full force and effect the Commitment Letter and to negotiate and enter into definitive agreements with respect thereto on the terms and conditions contained in the Commitment Letter (including any related “flex” provisions in the Fee Letterprovisions) or on such other terms and conditions that are acceptable no less favorable, in the aggregate, to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter Buyer (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) including with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)conditionality thereof), or (Bii) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in satisfy on a manner that would, in the case of this subclause timely basis (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period), or obtain a waiver of on a timely basis, all conditions in such definitive agreements that are applicable to Buyer and within Buyer’s control, (yiii) in the event that the conditions in Section 7.1 and Section 7.2 and the conditions contemplated in the Commitment Letter have been satisfied or upon funding would be satisfied, to cause the Persons providing the Financing to fund the Financing contemplated by the Commitment Letter on or prior to the Closing Date (including by enforcing its rights under the Commitment Letter), and (iv) to consummate the Refinancing (as defined in the Commitment Letter). Without Seller’s or the Company’s prior written consent, Buyer may not enter into any replacement, amendment, supplement or other modification of, or waive any of its rights under, all or a portion of the Commitment Letter if such replacement, amendment, supplement, modification or waiver would or could reasonably be expected to (1) reduce the aggregate amount of the Commitment Letter (other than to the extent Buyer has sufficient available and unrestricted cash on hand including through any equity offering to pay the Estimated Purchase Price (and adjustments thereto) in accordance with Section 5.7, it being understood that any cash escrowed for purpose of consummating the Financing shall not be deemed to be unavailable or restricted), (2) impose new or additional conditions or otherwise amend, expand or modify any of the conditions to the Financing in any respect that could make such conditions less likely to be satisfied on or before the Closing or that would expand the possible circumstances under which such conditions would not be satisfied on or before the Closing Date or (3) prevent, delay or impede the Closing or the date on which the Financing would be obtained or (4) adversely impact the ability of AGCO Buyer to enforce its rights against the other parties to under the Commitment Letter in Letter, provided that, for the avoidance of doubt, the Buyer may amend, supplement, modify or waive any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents agreements with respect thereto without the consent of the Company in order to (1) correct typographical errors, (2) add additional lenders, arrangers and lead arrangers, bookrunners, syndication agents or similar entities (by assignment or otherwise) or (3) reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver thereto in each case, to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter similarly creditworthy parties (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financingtogether, the “Available FinancingPermitted Debt Commitment Amendments”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders . Buyer shall give Seller and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble Company prompt notice (xbut in any event, within three (3) Business Days) (a) upon becoming aware of any material breach or default by any party to the Commitment Letter or any such definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financingagreements, (yb) receipt by it or any of the receipt its Affiliates of any written notice or other communication, in each case communication from any Committed Financing Source person in writing with respect to (i) any actual or potential failure to comply with the material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions terms of the Commitment Letter or any such definitive agreements relating to the Committed Financing if such breachby any party thereto, default, (ii) any actual or threatened written termination or repudiation would result (whether in a material delay of, whole or in part) of any way limitof the Commitment Letter or any such definitive agreements by any party thereto or (iii) any material dispute or disagreement between or among any of the parties to any of the Commitment Letter or any such definitive agreements solely to the extent such disagreement or dispute relates to the obligation (including with respect to the conditions, “flex” provisions or termination provisions thereto) of the parties thereto to fund their commitments thereunder or the availability of the Committed Financing and at the Closing (zbut excluding, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Financing or such definitive documents) or (c) if at any time for any reason AGCO Buyer believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditionsterms, in the manner or and from the Committed Financing Sources sources contemplated by the Commitment Letter (including any related “flex” terms) or the definitive agreements relating with respect thereto (other than to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) extent Buyer funds such portion of the immediately preceding sentence; provided Financing by available and unrestricted cash on hand including through any equity offering, which is sufficient to pay the Estimated Purchase Price (and adjustments thereto) in accordance with Section 5.7, it being understood that AGCO any cash escrowed for purpose of consummating the Financing shall not be required deemed to share any information with Trimble that is subject to attorney-client be unavailable or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilegerestricted). Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in If any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions contemplated in the Commitment Letter (including any related “flex” terms) for any or no reason (other than to the flex provisionsextent Buyer funds such portion of the Financing by available and unrestricted cash on hand including through any equity offering, which is sufficient to pay the Estimated Purchase Price (and adjustments thereto) in accordance with Section 5.7, it being understood that any cash escrowed for purpose of consummating the Financing shall not be deemed to be unavailable or restricted), Buyer shall promptly notify Seller and the Company thereof and Buyer shall use reasonable best efforts to arrange as promptly as practicable, but in no event later than one (1) day prior to the Closing Date, any such portion from alternative debt financing sources, on terms and conditions in the aggregate not materially less favorable in the aggregate to Buyer than the Financing contemplated in the Commitment Letter and Fee Letterto obtain a new financing commitment letter (including any associated engagement letter and related fee letter) copies of which shall be promptly provided to the Company, and, for the purposes of this Agreement, all references to the Financing shall be deemed to include such alternative financing, all references to the Commitment Letter and other definitive documents shall include the applicable documents for the alternative financing, and such portion all references to the Financing Sources shall include the Persons providing or arranging the alternative financing. Buyer shall keep Seller and the Company informed on a reasonably current basis and in reasonable detail of the status of Buyer’s efforts to arrange the Financing and to satisfy the conditions thereof and of all material developments concerning the status and timing of closing of the Financing. Notwithstanding anything herein to the contrary, obtaining the Financing or any alternative financing by Buyer is reasonably required not a condition to effect Closing and the Closingobligations of Buyer to consummate the transactions contemplated by this Agreement are not subject to the availability of the Financing. Buyer shall indemnify and hold harmless Seller, AGCO the Company and their respective Affiliates and their respective pre-Closing directors, officers, employees and representatives from and against any and all Losses suffered or incurred by any of them in connection with any of their cooperation or assistance with respect to the Financing or the provision of any information utilized in connection therewith or otherwise arising from the Financing, except to the extent suffered or incurred as a result of the gross negligence, willful misconduct or breach of this Agreement by Seller, the Company, any of its Subsidiaries or any of their respective representatives or Affiliates.
(b) From the date hereof until the Closing Date or the earlier termination of this Agreement in accordance with its terms, Seller and the Company shall use its reasonable best efforts to, and shall use reasonable best efforts to arrange cause their respective Subsidiaries, directors, officers, employees, agents and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount representatives to, at least equal to the unavailable portion thereofBuyer’s sole cost and expense, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the use reasonable best efforts obligation set forth in this Section 7.15 to provide all cooperation as may be construed so as to require AGCO reasonably requested by Buyer and that is necessary for the Financing by Buyer or any of its Affiliates to in connection with the transaction contemplated by this Agreement, including, without limitation: (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior to the Closing, Trimble shall use its using reasonable best efforts to provide (A) furnish to AGCOBuyer and its Financing Sources, as promptly as practicable, the Required Financial Information and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries (B) providing Buyer and its representatives with reasonable access to use their respective the representatives, employees, properties and books and records of the Company; (ii) using reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCOmake senior management of the Company available, at AGCO’s sole expense, all cooperation reasonably requested by AGCO reasonable times and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) to participate in a reasonable number of meetings, road shows, presentationsmeetings (including customary one-on-one sessions), conference calls, presentations, due diligence sessions, drafting sessions and other in person sessions with prospective lenders, investors and rating agencies and potential lenders and other in connection with the Financing, including through a customary syndication activities “roadshow” and reasonably cooperating with the marketing efforts for the Financing; (iii) using reasonable best efforts to assist with the preparation of AGCO customary information relating to the Company and the Financing Sourcesits Subsidiaries to be included in (A) an offering memorandum, in each caseprospectus supplement, bank information memoranda, private placement memoranda, registration statements and similar documents and other marketing materials, including “roadshow” or investor meeting slides to be used in connection with the Available Financing, at reasonable times Financing (including requesting any consents of accountants for use of their reports in any materials relating to the Financing and locations to be mutually agreed;
the delivery of one or more customary representation letters) and (iiB) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations; (iv) using reasonable best efforts to cause the Company’s auditors to provide assistance and cooperation to Buyer, offering documents, private placement memoranda, prospectuses, bank information memoranda including participating in drafting sessions and similar documents required accounting due diligence sessions and providing any necessary and customary “comfort letter” in accordance with applicable accounting standards; (v) providing appropriate representations in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery preparation of customary authorization financial statements and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation other financial data of the Company or and requesting accountants’ consents and any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates additional audit procedures in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers use of the Company and its Subsidiaries on and after the Closing and such resolutions, financing Company’s financial statements in offering documents, agreements prospectuses and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements other documents to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting be filed with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required SEC; (vi) using reasonable best efforts to be released pursuant provide to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and other information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities with respect to the Company under applicable “know your customer” and anti-money laundering rules and regulations, including, including without limitation, limitation the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” that is required under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent Commitment Letter and that has been reasonably requested by AGCO, directing Buyer; (vii) facilitating the auditors with respect execution and delivery (at the Closing) of definitive documents related to the Business to provide customary comfort letters (including “negative assurance” comfort Financing and change period comfort) other documents, as may be reasonably requested by AGCO with respect Buyer, and otherwise facilitating the pledging of and granting, recording and perfection of security interests in share certificates, securities and other collateral, and obtain surveys, title searches, appraisals and title insurance as reasonably requested by Buyer and taking all corporate actions, subject to financial information (including the historical Business information included in the pro forma financial information) occurrence of the Business included in any offering documents relating Closing, reasonably requested by the Buyer to permit the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements consummation of the Business are includedFinancing; and (viii) taking all actions reasonably necessary to (A) permit the Financing Sources to (x) evaluate the current assets, andcash management and accounting systems, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures relating thereto of the Company and applicable auditing standardsits Subsidiaries for the purpose of establishing collateral arrangements contemplated by the Commitment Letter and (y) conduct customary field examinations and inventory appraisals, and (B) facilitate the establishment of bank and other accounts and blocked account agreements and lockbox arrangements in connection with the foregoing; provided, however, (i) that neither Trimble nor any nothing in this Section 6.15(b) shall require the payment of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have fee or incur any other liability or obligation under or to enter into any loan agreement and related documents, effective in connection with the Financing unless and until the Closing occurs (except the authorization and representation letters referred to in clause occurs, (ii) above)none of Seller, (C) incur the Company, any of their Subsidiaries or Affiliates, or any of their respective directors, officers, employees or agents shall be required to execute or enter into any certificate, instrument, agreement or other liability document in connection with the Available Financing not contingent upon which will be effective prior to the occurrence Closing, and (iii) nothing herein shall require the board of directors or similar governing body of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ Company or any of its Subsidiaries’ Organizational Documents (, prior to the extent any provision creating Closing Date, to adopt resolutions approving or otherwise approve the agreements, documents or instruments pursuant to which the Financing is made. Buyer shall promptly, upon request by Seller, reimburse Seller for all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented outside attorneys’ fees) incurred by Seller, in connection with the cooperation contemplated by this Section 6.15(b). All non-public information provided from one Party or its representatives to the other Party or its representatives pursuant to this Section 6.15(b) shall be kept confidential in accordance with the Confidentiality Agreement, except that Buyer shall be permitted to disclose such conflict was not created information regarding the Company to potential lenders, investors or their respective agents, advisors or other representatives in contemplation connection with the Financing, subject to the confidentiality undertakings by the Financing Sources and potential lenders, investors or their respective agents, advisors or other representatives in accordance with the terms of the Available Financing) or any Laws or (y) result in Commitment Letter. Seller and the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble Company hereby consents consent to the reasonable use of its and its Subsidiaries’ trademarks and their respective logos in connection with the Available Financing; provided, however, provided that such trademarks and logos are not used solely in a manner that is not intended to nor or reasonably likely to harm or disparage Trimble Seller, the Company or their respective marks, reputation or goodwill. Nothing in this Section 6.15(b) shall require any cooperation or other action by Seller, the Company, any of their Subsidiaries or Affiliates, or any of their respective directors, officers, employees or agents to the extent such cooperation or action would materially and unreasonably interfere with the business and operations of Seller, the Company or any of their Subsidiaries or Affiliates. Notwithstanding anything to the contrary herein, Buyer acknowledges and agrees that the contemplated Financing relates to the Buyer and its Subsidiaries or and the reputationCompany and its Subsidiaries on a consolidated basis and therefore, all obligations of Seller, the Company and their respective Subsidiaries and representatives to provide cooperation as set forth in this Section 6.15(b) shall refer to and be limited to the Company and its Subsidiaries.
Appears in 1 contract
Sources: Stock Purchase Agreement (Kraton Performance Polymers, Inc.)
Financing. (ai) Subject The Purchaser shall, and shall cause its affiliates to, use commercially reasonable efforts to take, or cause to be taken, all appropriate action, do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Laws, and to execute and deliver, or cause to be executed and delivered, such instruments and documents as may be reasonably required, to arrange and consummate the Financing on or prior to the terms and conditions of this Agreement, AGCO shall use its reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) Closing on the terms and subject only to the conditions set forth contained in the Commitment Letter (Financing Commitments, including any “flex” provisions using its commercially reasonable efforts to cause the conditions in the Fee Letter) or on such other terms and conditions Financing Commitments that are acceptable within the Purchaser’s control to AGCO so long as such other terms be satisfied and conditions constitute Permitted to cause the financial institutions providing the Debt Financing Terms, and AGCO to fund the Debt Financing.
(ii) The Purchaser shall not agree to or permit any amendment material amendment, supplement or other modification to be made toof, or waive any waiver of any provision its rights under, the Commitment Letter any Financing Commitments or the Fee Letter (or following entry into definitive documents agreements relating to the Committed FinancingFinancing without the Seller’s prior written consent, such definitive documents) not to be unreasonably withheld, except that the Purchaser may amend, supplement or otherwise modify the Debt Financing Commitments if such amendment, supplement or other modification would not be reasonably likely to materially impair or waiver delay the funding of the Debt Financing or the Closing (Ait being understood that, subject to the requirements of this clause (ii), such amendment, supplement or other modification (1) does not contain additional or modified conditions or other contingencies to the funding of the Debt Financing relative to those contained in Debt Financing Commitments and (2) is otherwise not reasonably likely to impair or delay the funding of the Debt Financing or the Closing (it being understood than, subject to the requirements of this clause (ii), such amendment, supplement or other modification of the Debt Financing Commitments may provide for the assignment of a portion of the Debt Financing Commitment to additional agents or arrangers and grant such persons approval rights with respect to the Commitment Letter or the Fee Letter or such definitive documents, certain matters as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees are customarily granted to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedarrangers).
(biii) AGCO shall use its reasonable best efforts (taking into account the anticipated timing If any portion of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter becomes unavailable on the terms and conditions contained in the Commitment Letter (including Financing Commitments, the “flex” provisions included in Purchaser shall promptly notify the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms)Seller, (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO Purchaser shall use its commercially reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereofobtain, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic replacement commitments on terms that will enable the Purchaser to consummate the transactions contemplated by this Agreement and that are materially not less favorable to AGCO, in the aggregate (as determined by the Purchaser in its reasonable judgment) to the reasonable judgment of AGCO, Purchaser and the Seller than the economic terms those contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing)Commitments. AGCO The Purchaser shall deliver to Trimble true the Seller complete and complete correct copies of all written agreementsamendments, arrangements supplements, other modifications or contracts (including any side letters or (subject to customary redactions) fee letters) agreements pursuant to which any amended, supplemented, modified or replacement commitments shall provide the Purchaser with any portion of the Financing; provided that the Purchaser may redact from any such alternative source shall have committed copies the fee amounts and pricing information payable to provide any Alternative Financingtheir Financing sources.
(div) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCOThe Seller shall, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provideits subsidiaries to, and shall use its commercially reasonable best efforts to cause its and their respective Subsidiariesits subsidiaries’ Representativesindependent accountants, to legal counsel and other advisors to, provide to AGCO, at AGCO’s sole expense, all such reasonable cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation arrangement of the generality of Debt Financing as may be reasonably requested by the foregoingPurchaser or their Financing sources, such reasonable best efforts shall include:
including (iA) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road showsdrafting sessions, presentations, conference calls, road shows and due diligence sessionssession, sessions (B) using commercially reasonable efforts to furnish the Purchaser and its Debt Financing sources with rating agencies the Required Financial Information and potential lenders such other information and projections reasonably requested by the Purchaser in connection with the Debt Financing, (C) assisting the Purchaser and its Debt Financing sources in the preparation of (1) offering documents and other customary syndication activities informational and marketing materials and documents to be used for the Debt Financing and (2) materials for rating agency presentations, (D) reasonably cooperating with the marketing efforts of AGCO the Purchaser and its Debt Financing sources, including using commercially reasonable efforts to cause the syndication of the Debt Financing to benefit materially with Seller’s and Company’s existing lending relationships, (E) reasonably facilitating the pledging of collateral including real property collateral and execution and delivery of definitive agreements relating to the Financing Sourcesand customary deliverables and (F) using commercially reasonable efforts to obtain accountants’ “comfort letters”, in each caseaccountants’ consent letters, in connection with the Available Financinglegal opinions, at reasonable times customary landlord lien and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information access waivers, surveys, appraisals and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance title insurance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version Purchaser; provided that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation none of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble Seller nor any of its Subsidiaries subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability fee or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing Debt Financing; and provided further that such requested cooperation does not contingent upon unreasonably interfere with the occurrence ongoing operations of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ Seller and its subsidiaries. The Purchaser 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’ Organizational Documents (subsidiaries in connection with such cooperation. The Seller shall have the right to consent to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiariessubsidiaries’ trademarks and logos in connection with the Available Debt Financing; provided.
(v) The Purchaser shall keep the Seller reasonably informed on a timely basis of any material developments relating to the Financing.
(vi) The Purchaser acknowledges that the information being provided to it in connection with the Financing is subject to the terms of Section 6.02(a).
(vii) The Seller understands that the majority of the Purchase Price will be financed with proceeds of the Debt Financing, however, which will be provided by third party sources. The Seller accordingly acknowledges that such trademarks and logos are used solely in a manner that is the obligations of the Purchaser under this Section 5.03(b) do not intended to nor reasonably likely to harm or disparage Trimble require the Purchaser or any of its Subsidiaries affiliates to provide the Debt Financing themselves if such third party sources fail to provide the Debt Financing or to guarantee that such third party sources will provide the reputationDebt Financing but only requires that the Purchaser use its commercially reasonable efforts to arrange and consummate the Debt Financing.
(viii) In the event the Seller or any Transferred Entity suffers on or prior to the Closing any casualty or loss to any building, structure, material fixture or material improvement included within the Transferred Real Property, the Seller shall assign to the Purchaser insurance proceeds sufficient to cover such casualty or loss or otherwise make adequate provisions to bear the cost of the repair or replacement of such building, structure, material fixture or material improvement.
Appears in 1 contract
Sources: Purchase Agreement (Global Brass & Copper Holdings, Inc.)
Financing. (a) Subject Parent’s, Aristotle’s and Merger Sub’s obligations hereunder are not subject to any conditions regarding Parent’s, Aristotle’s, Merger Sub’s or any other person’s ability to finance, or obtain financing for, the Transactions; provided that the foregoing shall not otherwise limit the provisions of Sections 6.1 or 6.2. When otherwise obligated to consummate the Transactions in accordance with Section 1.3, Parent, Aristotle and the Merger Subs shall have sufficient funds available to, and shall, satisfy all of their respective obligations under this Agreement, including payment of any amounts required to be paid pursuant to Article II and all fees and expenses incurred in connection herewith.
(b) Unless, and to the terms extent, Aristotle, Parent or the Merger Subs have sufficient cash from other sources (including by reason of a capital market or other financing transaction) available to satisfy their obligations under this Agreement, from and conditions after the execution of this Agreement, AGCO Aristotle, Parent and the Merger Subs shall use its their respective reasonable best efforts to obtain arrange the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth described in the Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, any replacement of all or any portion of any facilities (or commitments thereof) described in, or any waiver of any provision or remedy under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed FinancingLetter, such definitive documents) if such amendment, modification modification, replacement or waiver (Ai) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing changing the amount of fees to be paid or original issue discount unless except by operation of the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount“market flex” provisions) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (Bii) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, receipt of any portion of the Financing in a manner that would, in the case of this subclause (B), would or would reasonably be expected to (xA) delay or prevent or materially delay the Closing or the availability Closing Date or (B) make the funding of the Committed Financing on the Closing Date taking into account the expected timing (or satisfaction of the Closing Date, taking into account conditions to obtaining the expected timing of the Marketing Period, Financing) materially less likely to occur or (yC) adversely impact the ability of AGCO Aristotle, Parent or the Merger Subs, as applicable, to enforce its their rights against the other parties to the Commitment Letter or the Definitive Agreements, in any material respect (the terms respect, including any right to seek specific performance of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents the Definitive Agreements. Subject to correct typographical errorsthe limitations set out in the first sentence of this Section 5.11(b), Aristotle, Parent and the Merger Subs may amend, supplement, modify or replace the Commitment Letter as in effect at the date hereof (x) to add additional or replace lenders, arrangers and lead arrangers, bookrunners, syndication agents or reallocate commitments similar entities who had not executed the Commitment Letter as of the date of this Agreement, (y) to increase the amount of indebtedness and (z) to replace all or assign a portion of the facility committed under the Commitment Letter as in effect as of the date hereof with one or reassign titles more new facilities under such Commitment Letter or roles tounder any new commitment letter or facility (any such new commitment or facility, a “Replacement Facility”) in a manner not materially less beneficial to Aristotle, Parent and the Merger Subs (as determined in the reasonable judgment of Aristotle), provided that any amendments, modifications or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies replacements of any such amendment, modification or replacementReplacement Facility shall be subject to the same limitations that apply to the Commitment Letter as set forth in the first sentence of this Section 5.11(b). For purposes of this Section 7.15 and Section 5.6 and Agreement, (1) the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to term “Committed Financing” shall be deemed to include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced pursuant to this Section 5.11 (including any Replacement Facility, any Alternative Financing and, in the case of Section 5.11(f), any offering of debt or equity securities the proceeds of which are intended to be used to satisfy the obligations under this Agreement), and references to (2) the term “Commitment Letter” shall be deemed to include such document the Commitment Letter as may be permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) replaced pursuant to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereofthis Section 5.11, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on handReplacement Facility, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements any commitment letters with respect to the Committed Alternative Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities related fee letters (it being understood and agreed that any Replacement Facility or Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior herein that apply to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputationCommitment Letter.
Appears in 1 contract
Financing. (a) Subject Prior to the terms and conditions Closing or earlier termination of this Agreement, AGCO shall use its reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth in the Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than Agreement in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A))ARTICLE IX, or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO Buyer shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing PeriodExtension Period if any Natural Disaster Event occurs) to obtain the Financing and consummate all Financing transactions as promptly as possible, including using its reasonable best efforts (Ai) to maintain in effect the Commitment Letter (or following entry into definitive documents in accordance with the terms and subject respect thereof, such definitive documents), (ii) to satisfy or obtain a waiver of the conditions thereofto funding applicable to Buyer in the Commitment Letter that are within the control of Buyer (or following entry into such definitive documents, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consentsuch definitive documents), (xiii) enter to enforce its rights under the Commitment Letter (or following entry into other debt financing arrangements (any definitive documents, such debt financing, a “Permanent Financing” and, together definitive documents) to cause the Financing Sources to comply with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing their obligations under the Commitment Letter (or definitive financing documents related thereto)documents, (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (yas applicable) and to fund the Financing (z), iv) to the extent that the remaining amount of the Committed Financing comply with its obligations under the Commitment Letter (or following entry into such definitive documents, such definitive documents) and (v) to negotiate and enter into any definitive documentation required by the terms of the Commitment Letter; provided that subject to the proviso below, Buyer may agree to or permit any amendment, replacement (with debt financing documents related theretocommitments or equity financing commitments), supplement or other modification of, or waive any of its rights under or terminate, the Commitment Letter (or following entry into such definitive documents, such definitive documents), including to add additional financing providers, lenders, arrangers and agents, in each case, without Sellers’ prior written consent; provided, further that notwithstanding the foregoing proviso, Buyer shall not permit any amendment, replacement, supplement or other modification of, or any waiver of any provision or remedy under, the Commitment Letter (or following entry into such definitive documents, such definitive documents) after that (A) would reduce the amount of the Financing such reductionthat the aggregate funds that would be available to Buyer at the Closing, when taken together with Cash on handother sources of funds available to Buyer, and available lines of credit, is no less than would not be sufficient to satisfy Buyer’s obligations to pay the Required AmountPurchase Price in accordance with ARTICLE II, (B) taking into account the expected timing imposes new or additional conditions (or otherwise expands any of the Marketing Period, negotiate and enter into definitive agreements with respect conditions to the Committed Financing) to receipt of the Financing contemplated by amounts which would reasonably be expected to prevent or materially delay the consummation of the Closing or the availability of the Financing at the Closing, or (C) otherwise would reasonably be expected to prevent or materially delay the consummation of the Closing. The foregoing restrictions shall not apply to the implementation of any “flex” provisions set forth in the Commitment Letter on the terms and conditions contained in Letter. Buyer shall promptly deliver to Sellers copies of any such amendment, modification, supplement or replacement of the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and following entry into such definitive agreements with respect thereto that are within its control anddocuments, subject to satisfaction such definitive documents). Without limiting the generality of all conditions to fundingthe foregoing, to consummate the Committed Financing at or prior to the Closing Dateor earlier termination of this Agreement in accordance with ARTICLE IX, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO Buyer shall give Trimble Sellers prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed the Financing Source Sources with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter (or following entry into definitive agreements relating to the Committed Financing if documents, such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing definitive documents) and (zy) if at any time for any reason AGCO Buyer believes in good faith that it will not be able to obtain all or any portion of the Committed Financing Financing, on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter (or following entry into such definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written requestdocuments, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (xsuch definitive documents), (y) or (z) of required so that the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way aggregate funds that would not waive such privilegebe available to Buyer at the Closing, when taken together with other sources of funds available to Buyer, are sufficient to satisfy Buyer’s obligations to pay the Purchase Price in accordance with Section 2.2. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in If any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b))becomes unavailable, or if any portion regardless of the Committed Financing otherwise becomes unavailable on the terms and conditions reason therefor (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required so that the aggregate funds that would be available to effect Buyer at the Closing, AGCO when taken together with other sources of funds available to Buyer, are sufficient to satisfy Buyer’s obligations to pay the Purchase Price in accordance with Section 2.2), Buyer shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereofobtain, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event, alternative financing from the same or other sources in an amount sufficient, when taken together with other sources of funds available to Buyer, to satisfy Buyer’s obligations to pay the Purchase Price in accordance with Section 2.2 on terms that would not reasonably be expected to prevent or materially delay the consummation of the Closing. For the avoidance purposes of doubtthis Agreement, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the “Financing” and “Commitment Letter and the Fee Letter (assuming the application of the “market flexLetter” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted deemed to be include any alternative financing, and any financing commitment or definitive financing agreement with respect to any alternative financing, arranged in compliance herewith and any amendments, modifications, replacements or supplements thereto. Prior to the form Closing or earlier termination of this Agreement in accordance with ARTICLE IX, Buyer shall promptly after execution thereof, provide copies of any such equity financing). AGCO shall deliver replacement or alternative financing documents to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative FinancingSellers.
(db) Prior to the ClosingClosing or earlier termination of this Agreement in accordance with ARTICLE IX, Trimble each Seller shall use its reasonable best efforts to provide to AGCOuse, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries each of the Transferred Companies to use their respective use, its commercially reasonable best efforts to provideto, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ RepresentativesRepresentatives to, to provide to AGCO, at AGCO’s sole expense, all reasonable and customary cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter Buyer in connection with Buyer consummating the Available Financing. Without limitation Financing at the sole cost and expense of Buyer, including the generality of the foregoing, such reasonable best efforts shall includefollowing:
(i) upon reasonable noticeproviding Buyer (A) the financial statements and other financial information set forth in Section 4.7(a), (B) the financial statements and other financial information set forth in Section 6.12 and (C) the financial and other pertinent information, documents and materials regarding the Transferred Companies and the Transferred Business set forth in Section 6.1(a);
(ii) assisting with the preparation of customary offering documents for the Financing (including pro forma financial statements and any customary information memorandum, private placement memorandum, prospectus or information memorandum) and reasonably cooperating with marketing efforts for the Financing, including participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) Key Employees in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, drafting sessions and sessions with rating agencies in connection with the Financing and potential lenders providing due diligence materials and other customary syndication activities and information reasonably cooperating with required by the marketing efforts lenders, underwriters, initial purchasers or investors in respect of AGCO and the Financing Sourcesany Financing, in each caseor their legal advisers, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO their due diligence investigation of the Required Information Transferred Companies and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required Transferred Business in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain CompliantFinancing;
(iii) to providing due diligence materials and other information reasonably required by the extent reasonably requested by AGCOlenders, (A) assisting underwriters, initial purchasers or investors in the preparation ofrespect of any Financing, and executing and deliveringor their legal advisers, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers their due diligence investigation of the Company Transferred Companies and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect Transferred Business with respect to the BusinessUnited States Office of Foreign Asset Control, sanctions Law, United States Foreign Corrupt Practices Act and cybersecurity matters;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources providing all documentation and other information about the Transferred Companies and the Transferred Business as is reasonably requested in writing by the lenders, underwriters, initial purchasers or investors in respect of any Financing Sources at least six (6) Business Days prior with respect to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “beneficial ownership,” “know your customer” and anti-money laundering rules and regulations, including, without limitation, regulations including the USA PATRIOT Act;
(v) assisting in the preparation of one or more credit agreements, includingindentures or other customary agreements, if as well as any pledge and security documents and intercreditor agreements, and other definitive financing documents, hedging documents, collateral filings or other certificates or documents as may be reasonably required by the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; andlenders;
(vi) complying with publicity guidelines with respect to the offering of any high yield debt securities by Buyer (or an Affiliate or related entity of Buyer), including refraining from public comment regarding any such offering without the prior consent of Buyer except as may be required by Law or stock exchange rule;
(vii) obtaining the assistance of its accountants in issuing customary representation letters to auditors and obtaining consents and customary comfort letters of independent accountants (including “negative assurance” comfort);
(viii) causing the Transferred Companies to execute and deliver customary definitive financing agreements, documents and certificates to the extent reasonably requested by AGCO, directing Buyer and otherwise facilitating the auditors with respect pledging of collateral reasonably necessary to secure the Financing; provided that the effectiveness of any definitive documentation executed by the Transferred Companies shall be subject to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) occurrence of the Business included in any offering documents relating Closing; and
(ix) providing authorization letters from Sellers’ outside accounting firms to the Committed Financing that consists Sources authorizing the distribution of Rule 144A marketed debt securities Financial Statement information to prospective Financing Sources. Nothing in which Section 6.10(b) shall require such cooperation to the combined financial statements extent it would (i) unreasonably disrupt the conduct of the Business are included, and, if required, customary consents to the use business or operations of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor Seller or any of its Subsidiaries shall Affiliates, (Aii) be required require any Seller or any of its Affiliates to pay any commitment or similar fee or incur any other similar fee, (B) have cost or expense that is not reimbursed by Buyer or otherwise incur any liability or obligation under give any loan agreement and related documentsindemnities, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence Financing; (iii) require any Seller or any of the Closing Date or (D) be required its Affiliates to take any action that will (x) would conflict with with, or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a any violation or breach of, or a default (with or without notice or lapse of time, or both) under, any Contract to which Trimble the certificate of incorporation or by-laws or other comparable organizational documents of such Seller or any of its Subsidiaries is a party Affiliates, any applicable Laws or any Contract; or (iv) require any Seller to agree to any amendment or modification to this Agreement or any Ancillary Document, Post-Closing Contract or Post-Signing Affiliate Arrangement. In addition, nothing herein shall require any Seller or any of its Affiliates or any of its Representatives to deliver legal opinions. In furtherance of and without limitation to the extent not entered into in contemplation immediately preceding sentence, nothing herein shall require any Seller or any of its Affiliates (other than the Transferred Companies and then only if subject to the occurrence of the provisions in this Section 7.15(d). Trimble hereby consents Closing) to the reasonable use enter into any agreement (or require their respective boards of its and its Subsidiaries’ trademarks and logos directors or equivalent governing bodies to approve any such agreement) in connection with the Available Financing; provided. Buyer shall promptly, howeverupon request by Sellers, that such trademarks reimburse Sellers for all reasonable third party costs and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble expenses (including reasonable attorneys’ and accountant fees) incurred by Sellers or any of its Subsidiaries their respective Affiliates or their respective Representatives in connection with the reputationcooperation in respect of the Financing required hereunder and shall indemnify and hold harmless Sellers, each of their respective Affiliates and each of their respective Representatives from and against any and all Losses suffered or incurred by any of them in connection with the Financing and any information used in connection therewith and any cooperation by Sellers hereunder, other than to the extent that any of the foregoing arises from the willful misconduct, Fraud or gross negligence or any of Sellers, their Affiliates or their respective Representatives.
Appears in 1 contract
Sources: Stock Purchase Agreement (Liberty Latin America Ltd.)
Financing. (a) Subject a. Notwithstanding anything to the terms and conditions of contrary contained in this Agreement, AGCO shall use its reasonable best efforts each of the parties hereto: (i) agrees that it will not bring or support any person in any action, suit, proceeding, cause of action, claim, cross-claim or third-party claim of any kind or description, whether in law or in equity, whether in contract or in tort or otherwise, against any of lender under any existing loan facility of Parent or Merger Sub or provider of any commitment for any loan facility to obtain Parent or Merger Sub (the Committed “Financing Sources”) in any way relating to this Agreement or any of the transactions contemplated by this Agreement, including, but not limited to, any dispute arising out of or relating in any way to any commitment letters or any loan agreement related to any financing, or financing commitment, provided or to be provided by any Financing Source (taking into account any reductions such financing a “Financing” and any such agreement or commitment a “Facility Commitment”) or the performance thereof pursuant to Section 7.15(b)(A)or the financings contemplated thereby, in any forum other than the federal and New York state courts located in the Borough of Manhattan within the City of New York; (ii) on the terms and conditions agrees that, except as specifically set forth in the Commitment Letter any Facility Commitment, all claims or causes of action (including any “flex” provisions whether at law, in the Fee Letterequity, in contract, in tort or otherwise) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies against any of the conditions Financing Sources in any way relating to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing any Facility Commitment or the availability performance thereof or the financings contemplated thereby, shall be exclusively governed by, and construed in accordance with, the internal laws of the Committed Financing on the Closing Date taking into account the expected timing State of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO mayNew York, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount giving effect to principles or rules or conflict of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), laws to the extent that such principles or rules would require or permit the remaining amount application of laws of another jurisdiction; and (iii) hereby irrevocably and unconditionally waives any right such party may have to a trial by jury in respect of any litigation (whether in law or in equity, whether in contract or in tort or otherwise) directly or indirectly arising out of or relating in any way to any Facility Commitment or the Committed Financing under performance thereof or the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing financings contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior thereby.
b. Prior to the Closing Date, as applicableif Parent wishes to borrow cash to fund the Merger Consideration from a reputable bank, including using the Company shall, at Parent's sole expense, cause its Subsidiaries to, and shall use commercially reasonable best efforts to cause its Representatives (including its legal and accounting Representatives) to, provide reasonable cooperation in connection with the lenders arrangement of the such financing as may be reasonably requested by Parent, including without limitation (i) providing reasonable and customary due diligence materials to the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter sources of such financing and any definitive agreements with respect thereto. Trimble acknowledges rating agencies, including financial statements and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay offinancial and other information, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As as soon as reasonably practicable after the date Trimble delivers to AGCO a written requestrequest therefor, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined reasonably and customarily required in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or connection with such financing; (ii) seek any equity investment or any offering, placement, sale or other issuance assisting Parent with the preparation of any equity securities (it being understood rating agency presentations and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true similar documents and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter materials in connection with the Available Financing. Without limitation financing and permitting the use of the generality of Company name and logo in the foregoing, such reasonable best efforts shall include:
offering materials; (iiii) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) participating in a reasonable number of meetings, road shows, presentations, conference calls, presentations and due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financingfinancing, at reasonable times and locations to be mutually agreed;
(iiiv) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries assisting in the possession preparation of Trimblecustomary offering materials and private placement memorandum and/or bank information memorandum with respect to the financing, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in Parent; and (v) facilitating and providing pertinent information for the preparation pledging of materials collateral for rating agency presentationsthe financing (the “Required Financial Information”); provided, offering documents, private placement memoranda, prospectuses, bank information memoranda that: (1) such requested assistance and similar documents cooperation does not unreasonably interfere with the ongoing operation of the Company and its Subsidiaries and does not create undue burden for the operation of the Company; (2) the Company shall not be required to pay any commitment or other fee or incur any liability or expense in connection with any financing; (3) the Available Financing (or effectiveness of any replacement thereof permitted hereunder), including documentation executed by the delivery of customary authorization and representation letters Company shall be subject to the extent contemplated by or customary in consummation of the Available Financing and a supplement Closing Date; (4) the Company shall not be required to provide access to or alternative version that does not include disclose information that constitutes material non-public information regarding Trimble to any party or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for entity unless such Required Information to remain Compliant;
(iii) person or entity is bound by confidentiality obligations reasonably satisfactory to the extent Company; and (5) the Company shall not be required to provide access to or disclose information where the Company reasonably requested by AGCO, (A) assisting in determines that such access or disclosure would jeopardize the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation attorney-client privilege of the Company or any of its Subsidiaries under or contravene ant Law or any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred contract to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of which the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party party. Notwithstanding anything to the extent not entered into in contemplation of the provisions contrary in this Agreement, the Required Financial Information required to be delivered pursuant to this Section 7.15(d6.11(e) shall be prepared in accordance with GAAP (except, in the case of unaudited financial statements, for the absence of footnotes and normal, recurring year-end adjustments). Trimble hereby consents .
c. Parent shall, and shall cause its affiliates to, (i) promptly upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs incurred by the Company in connection with cooperation provided for in Section 6.11(a) (such reimbursement to be made promptly and in event within three business days of delivery of reasonably acceptable documentation evidencing such expenses); and (ii) indemnify and hold harmless the reasonable use of its Company and its Subsidiaries’ trademarks Representatives from and logos against any and all Losses (as defined below) suffered or incurred by them in connection with the Available Financing; providedarrangement of any financing, howeverand any information utilized in connection therewith. All non-public or otherwise confidential information regarding the Company and its Subsidiaries obtained by Parent, that such trademarks its affiliates or their respective Representatives pursuant to this Section 6.11 shall be subject to the terms of the Confidentiality Agreement. Loss shall mean any include any loss, damage, injury, liability, claim, demand, settlement, judgment, award, fine, penalty, tax, fee (including reasonable attorney's fees), charge, cost (including cost of investigation) or expense of any nature.
d. For the avoidance of doubt, the obligation of Parent and logos are used solely in a manner that Merger Sub to close the transactions contemplated by this Agreement is not intended conditioned upon the consummation of any financing and, accordingly, the parties agree that a failure of Parent and Merger Sub to nor reasonably likely close the transactions contemplated by this Agreement resulting from a failure or inability to harm or disparage Trimble or consummate any financing constitutes a breach for purposes of its Subsidiaries or the reputationthis Agreement, notwithstanding compliance by Parent with Section 6.11.
Appears in 1 contract
Sources: Merger Agreement (Athenahealth Inc)
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO KWS shall use its reasonable best efforts to obtain arrange sufficient financing to allow Purchaser to pay the Committed Financing Purchase Price and all fees and expenses necessary or related to the consummation of the transactions contemplated by this Agreement (taking into account any reductions thereof pursuant to Section 7.15(b)(A)the “Financing”) as soon as practicable on the terms and conditions set forth described in the Commitment Letter Placing Agreement, including KWS using its reasonable best efforts to (including i) negotiate any “flex” provisions in the Fee Letter) definitive Contracts or on such make any other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) arrangements with respect to the Commitment Letter Financing as contemplated in the Placing Agreement and (ii) satisfy and comply with, on a timely basis, all terms, conditions, warranties, covenants, agreements and obligations applicable to KWS or its directors in the Fee Letter Placing Agreement that are within KWS’s control. In the event that all conditions applicable to the Financing have been satisfied, KWS shall use its reasonable best efforts to cause the Admission to become effective as soon as practicable in accordance with the AIM Rules, including by submitting the required application form at least three (3) Business Days before the expected date of Admission and supplying all such information, giving all such undertakings, paying all such fees and executing all such deeds and documents as may be required to enable the Admission to occur, to enable the admission of the Placing Shares as participating securities within CREST and to comply with the requirements of the London Stock Exchange, the AIM Rules or such definitive documentsany applicable law or regulation for the purpose of or in connection with the Admission.
(b) KWS shall not, as applicablewithout the prior consent of Seller, reduces agree to any amendments or modifications to, or grant any waivers of, any term, condition, covenant, agreement, provision or obligation contained in the Placing Agreement which would (i) reduce (or have the effect of reducing) the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless in respect of the Committed Financing is increased Financing) below an amount required for KWS and Purchaser to consummate the transactions contemplated by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents this Agreement, (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (Bii) imposes new or additional conditions or any contingencies or otherwise expandsexpands upon, amends amends, supplements or otherwise modifies any of the conditions to the Committed Financing, in a manner that would, set forth in the case of this subclause Placing Agreement that could (B)A) prevent, reasonably be expected to (x) prevent impede or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account (B) prevent, impede or delay the expected timing consummation of the Marketing Period, Financing or the satisfaction of the conditions to the Financing by the Closing Date or (yC) make the consummation of the Financing less likely to occur, (iii) adversely impact the ability of AGCO KWS to enforce or cause the enforcement of its rights against under the other parties Placing Agreement or (iv) impose additional obligations on KWS or its Subsidiaries prior to the Commitment Letter Closing Date which are not already in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedeffect.
(bc) AGCO If the Placing Agreement is terminated (other than as a result of an event the occurrence of which permits Purchaser to terminate this Agreement pursuant to Section 7.1), Purchaser shall use its commercially reasonable best efforts (taking into account to arrange to obtain, as promptly as practicable, alternative financing in an amount required for KWS and Purchaser to consummate the anticipated timing of the Closing Date transactions contemplated by this Agreement on terms, taken as a whole, that are not more onerous to KWS and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, Purchaser than those set forth in the case of each of clauses (x), (y) Placing Agreement. If and (z), to the extent that the remaining amount Financing is replaced by such alternative financing, Purchaser shall deliver to Seller true and complete copies of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into all definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on such alternative financing, and the terms “Financing” and conditions contained in the Commitment Letter (including the “flexPlacing Agreement” provisions included in the Fee Letter) (or on such other terms that are acceptable shall each be deemed to AGCO so long as such other terms and conditions constitute Permitted Financing Terms)be modified, (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to fundingmutatis mutandis, to consummate the Committed Financing at or prior refer to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter such alternative financing and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputation
Appears in 1 contract
Sources: Stock Purchase Agreement (Volt Information Sciences, Inc.)
Financing. (a) Subject Notwithstanding anything in this Agreement to the terms contrary, Purchaser acknowledges and conditions agrees that Purchaser’s obligations under this Agreement are not conditioned in any manner whatsoever upon Purchaser obtaining the Funds to satisfy the Funding Obligations, and the obtaining of this Agreementthe Financing is not a condition to Closing or the consummation of the Transactions.
(b) Purchaser shall, AGCO and shall cause its Affiliates to, use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable to arrange, consummate and obtain the Committed Debt Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions described in the Debt Commitment Letter and the Debt Fee Letter (including the “market flex” provisions set forth in the Debt Fee Letter) as promptly as practicable following the date hereof, including using its (and causing its Affiliates to use) reasonable best efforts to (i) maintain in full force and effect (and comply with their respective obligations under) the Debt Commitment Letter on the terms and conditions contained therein (including any including, to the extent the same are exercised, the “market flex” provisions set forth in the Debt Fee Letter) until the Transactions are consummated, (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 Debt Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall Purchaser that would not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces reduce the aggregate amount of the Committed Debt Financing 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 3.1, satisfy on a timely basis (or obtain a waiver of) all conditions in the Debt Commitment Letter. If all of the conditions to Purchaser’s obligations under Section 10.1 (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 (other than through litigation) the Debt Financing Sources to fund the Debt Financing, in each case at or prior to the Closing.
(c) Purchaser acknowledges and agrees that it shall be fully responsible for obtaining the Equity Financing in accordance with the Equity Commitment Letter and shall, and shall cause the Equity Financing Source, to take, or cause to be taken, all actions, and do, or cause to be done, all things necessary, proper or advisable to arrange, consummate and obtain the Equity Financing on the terms and conditions described in the Equity Commitment Letter as promptly as practicable following the date hereof, including taking (and causing the Equity Financing Source to take) all actions necessary to (i) maintain in full force and effect (and comply with their respective obligations under) the Equity Commitment Letter on the terms and conditions contained therein until the Transactions are consummated and (ii) satisfy on a timely basis (or obtain a waiver of) all conditions in the Equity Commitment Letter. If all of the conditions to Purchaser’s obligations under Section 10.1 (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 Equity Financing to be consummated, and shall cause (and enforce the obligations of) the Equity Financing Source to fund the Equity Financing, in each case at or prior to the Closing.
(d) Purchaser shall not, and shall cause its Affiliates not to, permit any amendment, restatement, modification, waiver, termination, replacement or assignment of the Debt Commitment Letter (or any portion of the Debt Financing thereunder) without the prior written consent of Seller that (i) reduces (or could have the effect of 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 unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (Bii) imposes new or additional conditions or otherwise contingencies to the receipt of all or any portion of the Debt Financing or expands, amends or modifies any conditions or contingencies to the receipt of all or any portion of the Debt Financing on the Closing Date, or (iii) would reasonably be expected to (A) delay, prevent, impede or make less likely the funding of the Debt Financing (or satisfaction of the conditions to the Committed Debt Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account or otherwise prevent, delay or impair the expected timing ability or likelihood of Purchaser to timely consummate the Closing Date, taking into account the expected timing of the Marketing Period, Transactions or (yB) adversely impact the ability of AGCO Purchaser to enforce its rights against the Debt Financing Sources or any other parties to the Debt Financing or the definitive agreements with respect thereto or (iv) relieves or releases any Debt Financing Source from its obligations under the Debt Commitment Letter (other than as expressly provided for in any material respect (the terms Debt Commitment Letter as in effect on the date hereof in connection with the designation of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”additional arrangers); provided, that subject to compliance with however, that, notwithstanding the other provisions of this Section 7.15foregoing, AGCO Purchaser may modify, supplement or amend the Debt Commitment Letter to the extent such modification, supplement or such definitive documents amendment (1) is limited to correct typographical errors, add additional adding or replacing lenders, arrangers and lead arrangers, bookrunners, syndication agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any similar entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and that have not executed the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Debt Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date date hereof, so long as each such Person has a long-term credit rating of A- or better issued by Standard & Poor’s Ratings Services and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇A3 or better issued by ▇▇▇▇▇’▇ consentInvestors Service, Inc. (xwhere it has a rating from more than one of such credit rating agencies) enter into other debt financing arrangements or (any such debt financing, a “Permanent Financing” and, together with 2) increases the Committed Financing, the “Available Financing”) and thereby reduce commitments or the amount of indebtedness thereunder. Purchaser shall promptly deliver copies of any amendment, modification, supplement or waiver to the Committed Financing under the Debt Commitment Letter or Debt Fee Letter to Seller (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCOwhich may, in the case of each of clauses the Debt Fee Letter, be redacted as provided in Section 5.6).
(x), (ye) and (z), to the extent that the remaining amount If all or any portion of the Committed Debt Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter becomes unavailable on the terms and conditions contained contemplated in the Debt Commitment Letter (including the “market flex” provisions included set forth in the Debt Fee Letter) (), or if Purchaser reasonably determines that such funds may become unavailable to Purchaser on such other terms that are acceptable to AGCO so long as such other the terms and conditions constitute Permitted Financing Termsset forth therein, Purchaser shall as promptly as practicable following the occurrence of such event (i) notify Seller in writing thereof as promptly as practicable after obtaining knowledge thereof (and in any event within twenty-four (24) hours), (Cii) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior to the Closing Date, as applicable, including using use its reasonable best efforts to cause obtain an amount equal to such portion of the lenders Debt Financing from alternative debt financing sources on terms and conditions no less favorable to Purchaser, taken as a whole, than as contemplated by the other persons committing to fund the Committed Financing on the Closing Date Debt Commitment Letter (taking into account the “Committed Financing Sources”market flex” provisions set forth in the Debt Fee Letter) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required or otherwise sufficient to enable Purchaser to consummate the Available Financing before the final day 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 Marketing Periodnew commitment letter and the related fee letters (which may, in the case of fee letters, be redacted as provided in Section 5.6) and related definitive financing documents with respect to such alternative financing.
(cf) AGCO shall Purchaser shall, as promptly as practicable after obtaining knowledge thereof (and in any event within twenty-four (24) hours), give Trimble prompt Seller written notice of any (xi) breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any breach or default default) related to the Financing, (ii) actual or threatened withdrawal, repudiation or termination by any party to the Commitment Letter Letters or definitive agreements relating related to the Committed Financing Financing, (iii) material dispute or disagreement between or among any parties to the Commitment Letters or definitive agreements related to the Financing, (iv) without limiting any of which AGCO has Knowledge if such breach Seller’s rights hereunder or default would result in a material delay with respect to the Equity Commitment Letter, amendment or modification of, or in any way limitwaiver under, the availability of Commitment Letters and the Committed Financing, (yv) of notification from one or more parties to the receipt of any written notice Commitment Letters or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or any definitive agreements relating related to the Committed Financing of any provisions of the Commitment Letter failure or definitive agreements relating inability to satisfy one or more conditions precedent to the Committed Financing if such breachor (vi) change, default, termination circumstance or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith event that causes Purchaser to believe that it will shall not be able to timely obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable practicable, but in any event within three (3) Business Days after the date Trimble Seller delivers to AGCO Purchaser a written request, AGCO Purchaser shall provide any information reasonably requested by Trimble Seller relating to any circumstance referred to in clause clauses (x), i) – (y) or (zvi) of the immediately preceding sentence; provided that AGCO . Purchaser shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used keep Seller informed on a reasonably current basis of the status of its reasonable best efforts to disclose such information arrange the Financing contemplated by the Commitment Letters, including providing drafts of all definitive agreements related to the Financing a reasonable period of time prior to their execution or use. In the event that Purchaser commences an enforcement action to enforce its rights under any agreement in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) respect of the second preceding sentence resulting in Financing or to cause the Equity Financing Source or any Debt Financing Source to fund all or any portion of the Committed Equity Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b))or the Debt Financing, or if any portion respectively, Purchaser shall keep Seller reasonably informed of the Committed Financing otherwise becomes unavailable on status of such enforcement action.
(g) For the terms and conditions (including purposes of this Agreement, the flex provisions) contemplated in the definitions of “Financing,” “Debt Commitment Letter and Letter,” “Debt Financing,” “Debt Fee Letter,” “Equity Commitment Letter” and “Equity Financing” include any of the foregoing as the same may be amended, waived, modified or replaced pursuant to this Section 6.10.
(h) Notwithstanding anything to the contrary in this Agreement, nothing contained in this Section 6.10 shall require, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates Purchaser require, Purchaser to (i) agree toseek the Equity Financing from any source other than the Equity Financing Source, or acceptin any amount in excess of that contemplated by, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Equity Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek pay any equity investment or any offering, placement, sale or other issuance material fees in excess of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type those contemplated by the Equity Commitment Letter, the Debt Commitment Letter in connection with or the Available Financing. Without limitation of the generality of the foregoingDebt Fee Letter (including, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as ofrequired, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) aboveflex provisions contained therein), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputation.
Appears in 1 contract
Financing. (a) Subject Each of Parent and Merger Sub shall use, and cause its Affiliates to the terms and conditions of this Agreementuse, AGCO shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate and obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the material terms and conditions (including the flex provisions) set forth in the Commitment Letter (Financing Agreements, including any “flex” provisions using reasonable best efforts to seek to enforce its rights under the Financing Agreements in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted event of a material breach thereof by the Financing TermsSources, and AGCO shall not permit any material amendment or modification to be made to, or consent to any waiver of any provision or remedy under, the Commitment Letter or the Fee Letter Financing Agreements (or following entry into definitive documents relating in each case except pursuant to the Committed Financingflex provisions thereof), such definitive documents) if such amendment, modification or waiver (Ai) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing changing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents Financing Agreements, (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (Bii) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financingreceipt of the Financing in a manner materially adverse to Parent or the Company, (iii) amends or modifies any other terms in a manner that would, in the case of this subclause (B), would reasonably be expected to (xA) delay or prevent or materially delay the Offer Closing or the availability Merger Closing or (B) make the timely funding of the Committed Financing on the Closing Date taking into account the expected timing or satisfaction of the Closing Date, taking into account conditions to obtaining the expected timing of the Marketing Period, Financing less likely to occur or (yC) adversely impact the ability of AGCO Parent or Merger Sub to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacementAgreements. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references toclarification, the Financing, any Committed foregoing shall not prohibit Parent from amending the Financing Source, any Financing Source, references Agreements to “Committed Financing” shall include the financing contemplated by the Commitment Letter add additional lender(s) (or definitive financing documents related theretoand Affiliates of such additional lender(s)) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaceda party thereto.
(b) AGCO Each of Parent and Merger Sub shall use use, and cause its Affiliates to use, its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate and obtain the Financing on the terms and conditions set forth in the Financing Agreements, including using reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Periodi) to (A) maintain in effect the Commitment Letter Financing Agreements in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent(ii) to satisfy all conditions and covenants applicable to Parent and Merger Sub in the Financing Agreements as and when required thereunder, (xiii) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into all definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter Financing Agreements on the material terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letterflex provisions) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms)contained therein, (Civ) to satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject applicable to satisfaction of all conditions to funding, to Parent and Merger Sub as and when required thereunder and consummate the Committed Financing at or prior to the Offer Closing Dateor, as applicablein the event the Offer Closing does not occur, the Merger Closing, including using its (or causing its Affiliates to use) reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (Dv) enforce to comply with its rights obligations under the Commitment Letter Financing Agreements and any definitive agreements with respect theretorelated Fee Letter. Trimble acknowledges Parent shall keep the Company reasonably informed on a reasonably current basis and agrees that AGCO shall not be required to consummate the Available Financing before the final day in reasonable detail of the Marketing Period.
status of its efforts to arrange the Financing and provide to the Company copies of all executed definitive documents related to the Financing (c) AGCO provided that the Financing Agreements may be redacted to omit the numerical fee amounts and certain economic terms of the market flex provided therein). Without limiting the generality of the foregoing, Parent and Merger Sub shall give Trimble the Company prompt notice (xand in any event within two Business Days) written notice: (w) of any default or breach (or any event that, with or without notice, lapse of time or both, would reasonably be expected to give rise to any default or breach) by any party to the Commitment Letter any Financing Agreement or definitive agreements relating document related to the Committed Financing of which AGCO has Knowledge if such breach Parent or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, its Affiliates becomes aware; (yx) of the receipt of any written notice or other communication, in each case communication from any Committed Financing Source person with respect to any actual or potential material default, breach, material default, termination or repudiation by any party to the Commitment Letter any Financing Agreement or any definitive agreements relating document related to the Committed Financing of any provisions of the Commitment Letter Financing Agreements or any definitive agreements relating document related to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and Financing; (zy) if at any time for any reason AGCO believes Parent or Merger Sub has determined in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditionsterms, in the manner or from the Committed Financing Sources sources contemplated by the Commitment Letter or definitive agreements relating Financing Agreements; and (z) any amendments to the Committed FinancingFinancing Agreements. As soon as reasonably practicable after practicable, but in any event within five days of the date Trimble the Company delivers to AGCO Parent or Merger Sub a written request, AGCO Parent and Merger Sub shall provide any information reasonably requested by Trimble the Company relating to any circumstance referred to in clause (w), (x), (y) or (z) of the immediately preceding sentence; provided that AGCO .
(c) Notwithstanding anything to the contrary contained in this Agreement, nothing contained in this Section 6.8 shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letterrequire, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth of Parent or Merger Sub be deemed or construed to require, either Parent or Merger Sub to pay any material fees in excess of those contemplated by the Financing Agreements (whether to secure waiver of any conditions contained therein or otherwise). However, nothing contained in this Section 7.15 be construed so as to require AGCO or 6.8(c) shall release Parent from paying any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Termination Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) otherwise payable pursuant to which any such alternative source shall have committed to provide any Alternative FinancingSection 8.3.
(d) Prior to the Closing, Trimble Each of Parent and Merger Sub shall use its reasonable their best efforts to provide take, or cause to AGCObe taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate, or cause to be consummated, and shall use, or cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use be used, the proceeds of the Financing for payment of (i) the aggregate Offer Price; (ii) Merger Consideration; and (iii) amounts payable to holders of Company SARs and Company RSUs in accordance with Section 3.4. Notwithstanding anything to the contrary contained in this Agreement, and without regard to the then market conditions or other general economic conditions, including the interest rate and cost of the Financing, and, for the avoidance of doubt, regardless of whether or not commercially reasonable, if all of the Offer Conditions (other than the Financing Proceeds Condition) have been satisfied or waived or, if the Offer Termination has occurred, all of the conditions set forth in Section 7.1 (other than Section 7.1(d)) and Section 7.2 (other than the conditions that by their respective reasonable best efforts terms are to providebe satisfied at the Merger Closing) have been satisfied or waived, then Parent shall consummate, or cause to be consummated, and shall use its reasonable best efforts use, or cause to cause its and their respective Subsidiaries’ Representativesbe used, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings the proceeds of the type contemplated by Financing no later than the Commitment Letter in connection with the Available Financing. Without limitation earlier to occur of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
Offer Closing Date; or (ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Merger Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputation.
Appears in 1 contract
Financing. (a) Subject Parent shall use, and shall cause its Affiliates to use, reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate and obtain the Financing on the terms and conditions described in the Commitment Letters (or the Alternative Financing on the terms described in the Alternative Financing Commitment Letters, if applicable) as soon as reasonably practicable after the date of this Agreement, AGCO shall use its including using reasonable best efforts (i) to obtain maintain in full force and effect the Committed Commitment Letters (or the Alternative Financing Commitment Letters, if applicable), (ii) to negotiate and enter into the definitive agreements with respect to the Financing contemplated by the Commitment Letters (or the Alternative Financing Commitment Letters, if applicable) (which terms shall not in any respect expand on the conditions precedent to the funding on the Closing Date of the Financing (taking into account or the Alternative Financing, if applicable) (the “Financing Agreements”)), (iii) to satisfy (or cause its Affiliates to satisfy) on a timely basis all conditions applicable to Parent and its Subsidiaries to obtaining the Financing (or Alternative Financing) set forth in the Commitment Letters (or Alternative Financing Commitment Letters) that are within their control, (iv) to take each of the actions required of the Company and its Subsidiaries in Section 8.12(b) below with respect to itself and its Subsidiaries, and (v) to fully enforce its rights under the Commitment Letters (or the Alternative Financing Commitment Letters, if applicable) and Financing Agreements in the event of a breach by any reductions thereof pursuant Financing Sources that impedes or delays the Closing, including by seeking specific performance of the parties thereunder if necessary to cause the Financing Sources to fund the Financing or Alternative Financing, as applicable, required to consummate the Merger at the Closing; provided that solely with respect to this clause (v), (A) all conditions in Sections
2.01 and 2.02 (other than those conditions that by their nature are to be satisfied at the Closing) have been satisfied or waived, (B) the Company has irrevocably confirmed that (1) all conditions set forth in Section 7.15(b)(A2.03 have been satisfied or that it is willing to waive any of the conditions in Section 2.03 to the extent not so satisfied and (2) if specific performance is granted and the Financing is funded, then the Closing will occur and (C) all conditions to the consummation of the Financing contemplated by the Commitment Letters (other than those conditions that by their nature cannot be satisfied until the Closing, but each of which shall be capable of being satisfied on the Closing (and shall be satisfied on the Closing Date)) have been satisfied and remain satisfied. Parent shall not permit any amendment, modification or supplement to be made to, or any waiver of, any provision or remedy under the Commitment Letters (or the Alternative Financing Commitment Letters, if applicable) and/or the Financing Agreements, that (A) expands upon the conditions precedent to the funding on the Closing Date of the Financing (or Alternative Financing, as applicable) as set forth in such agreements, or (B) could prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. Parent shall be permitted to reduce the amount of Financing under any Financing Commitment or the definitive agreements with respect thereto in its reasonable discretion; provided, that Parent shall not reduce a Financing to an amount committed below the amount that is required, together with the financial resources of Parent, including cash on hand, marketable securities and the proceeds of loans under existing credit facilities of Parent or its subsidiaries, to consummate the Merger and the other transactions contemplated by this Agreement, and provided further that such reduction shall not (I) expand upon the conditions precedent to any Financing as set forth in the Commitment Letters or (II) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. In the event that any portion of the Financing becomes unavailable or Parent becomes aware of any event or circumstance that makes any portion of the Financing unavailable, in each case, on the terms and conditions set forth in the applicable Commitment Letter (including any “flex” provisions in Letters and/or the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing TermsAgreements, Parent shall promptly notify the Company, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO Parent shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereofobtain, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to such portion from alternative sources (i“Alternative Financing”) agree to, or accept, economic on terms that are materially less favorable will still enable Parent to AGCOconsummate the transactions contemplated by this Agreement and to obtain, as determined in and, when obtained, to provide the reasonable judgment Company with a copy of, new financing commitments (including all exhibits, schedules, annexes and amendments to such agreement and excerpts of AGCO, than the economic terms contained in the Commitment Letter those portions of each fee letter and the Fee Letter (assuming the application engagement letter associated therewith that contain any conditions to funding of the “market flex” provisions) that provide for such Alternative Financing (the “Alternative Financing Commitment Letters”). Parent shall refrain (and shall cause its Affiliates to refrain) from taking, directly or (ii) seek indirectly, any equity investment or any offering, placement, sale or other issuance action that would reasonably be expected to result in a failure of any equity securities (it being understood and agreed that of the conditions precedent contained in any Commitment Letter, Alternative Financing Commitment Letter or Financing Agreement. Parent shall be permitted keep the Company reasonably informed on a current basis in reasonable detail of the status of its efforts to be in obtain any Financing or Alternative Financing, provide the form of any such equity financing). AGCO shall deliver to Trimble true and complete Company copies of all written agreementsdocuments related to any Financing or Alternative Financing and give the Company prompt notice of any material breach or threatened breach by any party to any Financing Commitment or Alternative Financing of which Parent becomes aware or any termination of any Commitment Letter (or Alternative Financing Commitment, arrangements if applicable) and/or the Financing Agreements, and Parent shall give the Company prompt notice of any termination or contracts threatened termination of the Commitment Letters (including any side letters or Alternative Financing Commitment, if applicable) and/or the Financing Agreements. In the event that Parent commences an enforcement action to enforce its rights under the Commitment Letters (subject or Alternative Financing Commitment Letters, if applicable) or the Financing Agreements and/or cause the Lenders or other Financing Sources to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide fund the Financing or any Alternative Financing, Parent shall keep the Company reasonably informed of the status of such enforcement action and at the reasonable request of the Company shall make Parent’s officers, directors, employees, financial advisors, accountants and other advisors, representatives and agents reasonably available to discuss the status of, and material developments with respect to, such enforcement action.
(db) Prior to the ClosingThe Company shall provide, Trimble shall use cause its reasonable best efforts Subsidiaries to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its the Company’s officers, directors, employees, financial advisors, attorneys, accountants and their respective other advisors, investment bankers, representatives and agents retained by the Company or any of the Company’s Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all such reasonable cooperation in connection with any Financing as may be reasonably requested by AGCO and that is necessary and customarily required for financings Parent or any provider of the type contemplated by the Commitment Letter in connection with the Available such Financing or any Alternative Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
including, but not limited to, (i) upon participation in a reasonable notice, participation by number of meetings (including customary one-on-one meetings with the parties acting as lead arrangers for such Financing or any Alternative Financing and senior management and Representatives of Trimblerepresentatives, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number , of meetingsthe Company), drafting sessions, presentations, road shows, presentations, conference calls, due diligence sessions (including accounting due diligence sessions, ) and sessions with the rating agencies agencies, (ii) providing Parent and potential lenders its Financing Sources with financial and other pertinent information regarding the Company and the Company’s Subsidiaries (including information to be used in the preparation of an information package regarding the business, operations, financial projections and prospects of Parent and the Company customary syndication activities for such financing or reasonably necessary for the completion of any Financing by Parent’s Financing Sources) as may be reasonably requested by Parent to consummate such Financing, (iii) assisting Parent and its Financing Sources in the preparation of documents and materials in connection with any Financing, including, but not limited to, (A) any offering documents, bank information memoranda, prospectuses and other informational and marketing materials and documents (including historical and pro forma financial statements and information) for any portion of any Financing and (B) materials for rating agency presentations, (iv) reasonably cooperating with the marketing efforts of AGCO Parent and the its Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO Sources for any portion of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available any Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents consenting to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its Company’s and its Subsidiaries’ trademarks and logos in connection with the Available Financinglogos; provided, however, provided that such trademarks and logos are used solely in a manner that is not intended to nor or reasonably likely to harm or disparage Trimble the Company or its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries), (v) reasonably facilitating the pledging of collateral and execution and delivery of definitive financing documents and customary deliverables, (vi) providing the consolidated balance sheet of the Company as of the end of the fiscal year ending December 31, 2010 and related consolidated statements of operations, cash flows and shareholders’ equity, accompanied by an unqualified report thereon of McGladrey, and an unaudited balance sheet and related statements of operations and cash flows of the Company for each fiscal quarter ending more than 45 days prior to the Closing Date and for the elapsed period of the 2011 fiscal year and for the comparable periods of the prior fiscal year, (vii) using its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, and (viii) cooperating reasonably with Parent’s Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company; provided, further, that none of the Company or any of its Subsidiaries shall be required to pay any commitment or other fee, provide any security or incur any other liability in connection with any Financing or Alterative Financing prior to the Effective Time; and provided, further, that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries. Parent shall, promptly upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs incurred by the Company or any of its Subsidiaries, representatives or agents in connection with such cooperation. Parent shall indemnify and hold harmless the Company and its Subsidiaries and their representatives and agents from and against any and all losses or damages suffered or incurred by them in connection with the arrangement of any Financing or Alternative Financing and any information utilized in connection therewith (except for Losses or damages suffered or incurred solely as a result of information provided by the Company or any of its Subsidiaries). All non-public or otherwise confidential information regarding the Company obtained by Parent or the reputationParent Representatives pursuant to this Section shall be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Merger Sub shall be permitted to disclose such information to potential syndicate members during syndication, subject to customary confidentiality undertakings by such potential syndicate members.
Appears in 1 contract
Sources: Merger Agreement (Polyone Corp)
Financing. (a) Subject to the terms Each of Parent and conditions of this Agreement, AGCO shall Purchaser will use its commercially reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth described in the ▇▇▇▇▇ Fargo Commitment Letter (or on terms no less favorable to Parent and Purchaser with respect to the conditionality and amount (including any “flex” provisions in the Fee Letteramount of fees to be paid) or on such other terms thereof) and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision underor remedy under the ▇▇▇▇▇ Fargo Commitment (other than to increase the amount of the Financing), the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing changing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)paid), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions precedent to the Committed Financing, Financing in a manner that would, in the case of this subclause (B), would reasonably be expected to (x) delay or prevent or materially delay the Offer Closing or make the availability funding of the Committed Financing on the Closing Date taking into account the expected timing less likely to occur. Each of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) Parent and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO Purchaser shall use its commercially reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Periodi) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) Fargo Commitment and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the ▇▇▇▇▇ Fargo Commitment Letter on the terms and conditions contained in the ▇▇▇▇▇ Fargo Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable no less favorable to AGCO so long as such other terms Parent and conditions constitute Permitted Financing TermsPurchaser), (Cii) to satisfy on a timely basis all conditions applicable to funding it in the Commitment Letter and such definitive agreements with respect thereto that are within its control andcontrol, subject to (iii) upon satisfaction of all conditions to fundingsuch conditions, to consummate the Committed Financing at or prior to the Offer Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be to amounts required to consummate the Available Financing before Offer) and the final day of the Marketing Period.
Closing (c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party amounts required to consummate the Commitment Letter or definitive agreements relating to Merger and make other payments due at such time in accordance with the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing terms hereof) and (ziv) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or comply with its obligations under the ▇▇▇▇▇ Fargo Commitment. If any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions contemplated by the ▇▇▇▇▇ Fargo Commitment, (including i) Parent and Purchaser shall promptly notify the flex provisionsTable of Contents Company and (ii) contemplated in the Commitment Letter Parent and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO Purchaser Sub shall use its their commercially reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal sufficient to consummate the unavailable portion thereof, as transactions contemplated by the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with Merger Agreement and on terms and conditions that are not materially less favorable to AGCO (or its Subsidiaries)from the standpoint of Parent, as determined in Purchaser and the reasonable judgment of AGCO, Company than the terms and conditions set forth in the ▇▇▇▇▇ Fargo Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to The Company will provide to AGCO, Parent and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, Purchaser all cooperation that is reasonably requested by AGCO Parent and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter customary in connection with the Available Financing. Without limitation arrangement of debt financing in acquisition transactions, provided, however, that no such requested cooperation may unreasonably interfere with the ongoing operations of the generality of the foregoing, such reasonable best efforts Company. Such cooperation shall include:
, without limitation, (i) furnishing Parent, Purchaser and their Financing sources as promptly as practicable with financial and other pertinent information regarding the Company, as may be reasonably requested by Parent, and identifying any portion of such information that constitutes material non-public information, (ii) in each case, upon reasonable noticenotice and in reasonably convenient locations, participation by making senior management and Representatives of Trimble, the Company and their respective Subsidiaries (with appropriate seniority and expertise) available to participate in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, and sessions with rating agencies and potential prospective lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) taking all corporate actions, subject to and only effective upon the occurrence of the Effective Time, required to permit the consummation of the Financing and to permit the proceeds thereof to be made available to the extent reasonably requested by AGCO, Surviving Corporation immediately after the Effective Time; and (Aiv) assisting otherwise taking actions within its control to cooperate in satisfying the conditions precedent set forth in the preparation of▇▇▇▇▇ Fargo Commitment or the definitive documents related to the Financing, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company under any certificate, document or instrument shall be effective until the Effective Time, and none of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have pay any liability expense or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other obligation or liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (prior to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputationEffective Time.
Appears in 1 contract
Financing. (a) Parent or Merger Sub, as applicable, shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable to obtain the Financing, including to:
(i) negotiate definitive financing agreements with respect to the Financing (the “Definitive Financing Agreements”) on terms and conditions no less favorable to Parent, Merger Sub, the Company or any of the holders of Shares, as applicable, (whether by making any such conditions or other contingencies less likely to be satisfied on a timely basis or otherwise) than those contained in the applicable Commitment Letters (including any “market flex” and “securities demand” terms and conditions) or impose any new or additional condition or other contingency relating to the receipt of funding of the Financing;
(ii) enter into Definitive Financing Agreements with respect thereto and, upon the satisfaction or waiver of the conditions set forth in ARTICLE VII (other than those conditions that by their terms are to be satisfied at the Closing, but subject to the satisfaction or waiver of those conditions), consummate the Financing at or prior to the Closing;
(iii) satisfy on a timely basis all covenants and conditions applicable to Parent in the Commitment Letters;
(iv) maintain in effect the Commitment Letters until the funding of the applicable Financing thereunder; and
(v) if the conditions under the Commitment Letters are satisfied, cause the Financing to be funded in full on or prior to the date the Closing is required to occur in accordance with this Agreement.
(b) Parent shall keep the Company fully informed in writing on a current basis in reasonable detail with respect to the status of the Financing. Without limiting the generality of the foregoing, Parent and Merger Sub shall give the Company prompt notice of (i) any breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any breach or default) on the part of any party to any Commitment Letter of which Parent or Merger Sub becomes aware, (ii) the receipt by Parent or Merger Sub of any written notice or other written communication from any Person with respect to any actual or potential breach, default or material dispute (for the avoidance of doubt, excluding ordinary course negotiations) by or involving any party under any Commitment Letter or Definitive Financing Agreement and (iii) any actual or purported withdrawal, modification, termination, rescission or repudiation of any Commitment Letter or Definitive Financing Agreement. Notwithstanding the foregoing, nothing herein shall require Parent or Merger Sub to disclose any information if such disclosure would, in its reasonable discretion (i) jeopardize any attorney-client or other legal privilege or (ii) contravene any applicable Law, fiduciary duty or binding agreement entered into prior to the date of this Agreement (including any confidentiality agreement to which Parent or its Affiliates is a party).
(c) Subject to the terms and conditions of this Agreement, AGCO shall use its reasonable best efforts to obtain the Committed Financing Agreement (taking into account any reductions thereof pursuant to Section 7.15(b)(A)and other than (x) on the terms and conditions as expressly set forth in this Section 6.19 with respect to any Alternative Financing and (y) amendments, modifications or supplements to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties to the Debt Commitment Letter (including any “flex” provisions in the Fee Letter) , neither Parent nor Merger Sub shall agree to or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, the any Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver would or would reasonably be expected to: (Ai) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces reduce the aggregate amount of the Committed Financing (including in each case, except as expressly permitted therein) to an amount less than the Required Amount (taking into account any then available debt and equity financing); (ii) expand the conditions or other contingencies relating to the receipt or funding of the Financing, amend or modify any of the conditions or other contingencies relating to the receipt or funding of the Financing (whether by increasing the amount making any of fees such conditions or other contingencies less likely to be paid satisfied on a timely basis or original issue discount unless the Committed Financing is increased by a corresponding amount otherwise) or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes impose new or additional conditions or otherwise expands, amends other contingencies relating to the receipt or modifies any funding of the conditions to the Committed Financing, in each case, in a manner that would, in the case of this subclause (B), would reasonably be expected to (xA) materially prevent or materially delay the Closing Effective Time or the availability date on which the Financing would be obtained or (B) make the timely funding of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, less likely to occur; or (yiii) adversely impact the ability of AGCO Parent or Merger Sub to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Letters or Definitive Financing before the final day of the Marketing PeriodAgreements.
(cd) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to In the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith event that it will not be able to obtain all or any portion of the Committed Debt Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee LetterLetters, and such portion is reasonably required to effect regardless of the Closingreason therefor, AGCO shall Parent will use its reasonable best efforts to arrange and to, or at the option of Parent, Parent or Merger Sub, may obtain in replacement thereof alternative debt financing (“Alternative Financing”) or preferred equity financing from the same or alternative sources (in an amount at least equal to the unavailable portion thereof, as the case may be Required Amount (taking into account any reductions thereof pursuant then available debt and equity financing)) (the “Alternative Financing”). Parent will provide the Company with a copy of any new financing commitment letter with respect to Section 7.15(b)(Aany Alternative Financing (and any fee letter in connection therewith (it being understood and agreed that any such fee letter may be redacted in the same manner as the fee letter delivered in connection with the Debt Commitment Letter)), with terms and . Such Alternative Financing commitment letter shall not include any conditions not to the consummation of such Alternative Financing that are materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, more onerous than the terms and conditions set forth in the Debt Commitment Letter delivered as of the date hereof, provided that such Alternative Financing commitment letter may include a customary marketing period or any other conditions that are not reasonably likely to (A) materially prevent or delay the Effective Time or the date on which the Financing would be obtained or (B) make the timely funding of the Financing less likely to occur. In the event Alternative Financing is obtained, (i) references in this Agreement to the Financing shall also be deemed to refer to such Alternative Financing, (ii) if one or more commitment letters or definitive financing agreements are entered into or proposed to be entered into in connection with such Alternative Financing, references in this Agreement to the Commitment Letters and the Fee Letter Definitive Financing Agreements shall also be deemed to refer to such commitment letters and definitive financing agreements relating to such Alternative Financing, (including iii) references in this Agreement to the flex provisions thereinLenders shall include the debt financing sources providing financing pursuant to such Alternative Financing, and (iv) all obligations of Parent and Merger Sub pursuant to this Section 6.19 shall be applicable thereto to the same extent as promptly as reasonably practicable following Parent’s and Merger Sub’s obligations with respect to the occurrence of such eventFinancing. For Notwithstanding anything to the avoidance of doubtcontrary contained in this Agreement, nothing contained in this Section 6.19 shall require, and in no event shall the reasonable best efforts obligation set forth in this Section 7.15 of Parent be deemed or construed so as to require AGCO or any of its Affiliates require, Parent to (i) agree seek the Equity Financing from any source other than those counterparty to, or acceptin any amount in excess of that contemplated by, economic terms that are materially less favorable the Equity Commitment Letter or (ii) pay any fees or any interest rates applicable to AGCO, as determined the Debt Financing in excess in the reasonable judgment aggregate of AGCO, than those contemplated by the economic terms contained in the Debt Commitment Letter and the Fee Letter (assuming the application of including the “market flex” provisions), or agree to any “market flex” term less favorable to Parent or Company than such corresponding “market flex” term contained in or contemplated by the Debt Commitment Letter as of the date hereof (in either case, whether to secure waiver of any conditions contained therein or otherwise). Notwithstanding the foregoing, compliance by Parent and Merger Sub with the provisions of this Section 6.19(d) shall not relieve Parent or (ii) seek any equity investment or any offering, placement, sale Merger Sub of their obligations to consummate the Merger or other issuance of any equity securities (it being understood and agreed that any Alternative transactions contemplated hereby whether or not the Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financingis available.
(de) Prior to the ClosingThe Company shall, Trimble and shall cause its Subsidiaries to, use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, Parent all cooperation reasonably requested by AGCO and that is necessary Parent and customarily required for provided to the borrowers or issuers in financings of the type contemplated by the Debt Commitment Letter Letter, and at Parent’s sole expense, in connection with Parent’s arrangement and obtaining the Available Debt Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
including: (i) prior to and during the Marketing Period, at reasonable times and upon reasonable advance written notice, preparation for and participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetingsmeetings (in each case, which may be held by conference call), conference calls, road shows, presentations, conference calls, due diligence sessions, drafting sessions and sessions with rating agencies and potential prospective Lenders (including customary one-on-one meetings with the parties acting as lead arrangers or agents for, and prospective lenders of, any Debt Financing) or other reasonable and other customary syndication activities debt financing activities, in each case, by officers of customary seniority and reasonably expertise of the Company, in each case, at the time and locations to be mutually agreed; (ii) prior to and during the Marketing Period, cooperating with the marketing efforts of AGCO Parent and the Financing Sources, in each case, in connection with Lenders relating to the Available Debt Financing, at including providing reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in with the preparation of materials for rating agency presentations, offering documentsprospectuses, private placement memoranda, prospectusesoffering memoranda, bank information memoranda and packages (including, in each case, using reasonable best efforts to procure permission for the use of industry reports and data referenced therein), a confidential information memorandum and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder)Debt Financing, including the delivery of marketing and syndication thereof (if applicable); (iii) as promptly as reasonably practicable, furnishing Parent with (x) the Required Financial Information and, (y) such other pertinent and customary authorization financial information with respect to the Company and representation letters its Subsidiaries, as may be reasonably requested by Parent to the extent contemplated that such information is of the type and form customarily included in a bank information memoranda or an offering memorandum with respect to a private placement of high yield debt securities pursuant to Rule 144A under the Securities Act, as applicable, and is historically prepared by or the Company and its Subsidiaries and customary and reasonable assistance (but not preparation of) in the Available Financing preparation by Parent of pro forma financial information and a supplement to pro forma financial statements (it being understood that Parent shall be responsible for the preparation of any pro forma calculations, any post-Closing or alternative version other pro forma cost savings, capitalization, ownership or other pro forma adjustments that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
included therein); (iii) to the extent reasonably requested by AGCO, (Aiv) assisting in with the negotiation and preparation of, and executing and delivering, any customary credit agreements, indentures, purchase agreements, amendments, collateral documents, other definitive financing agreements, customary officer’s certificates and other certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect documents with respect to the Business;
Debt Financing (ivincluding schedules thereto) assisting with as may be reasonably requested by Parent, including, without limitation, any schedules or exhibits thereto and the discharge and termination furnishing of any Liens on customary financing deliverables; provided that such agreements do not become effective until the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
Closing; (v) no less than four furnishing Parent promptly, and in any event at least five (45) Business Days business days prior to the Closing Date (to the extent requested at least eight (8) business days prior to the Closing Date), furnishing to AGCO and the Financing Sources with all documentation and other information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably Lenders determine is required by regulatory authorities any Governmental Entity under applicable “know your customer” ”, beneficial ownership and anti-money laundering rules and regulations, including, without limitation, including the USA PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) facilitating the pledge of and obtaining perfection in collateral and the provision of guarantees, in each case, the effectiveness of which shall be conditioned upon the occurrence of the Closing; (vii) executing and delivering customary authorization letters authorizing the distribution of information to the extent reasonably requested by AGCO, directing the auditors prospective lenders with respect to the Business Debt Financing that contain a customary representation that the public side versions of such documents do not include material non-public information about the Company or its Subsidiaries or their securities and as to provide the accuracy of the information contained in such documents and identify any portion of such information that constitutes material, non-public information regarding the Company or its Subsidiaries or their securities; and (viii) in connection with any offering of high yield debt securities as part of the Debt Financing, (x) use commercially reasonable efforts to cause the independent registered public accountants of the Company to cooperate with the Debt Financing, including by issuing a customary comfort letters letter (including customary “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including upon the historical Business information “pricing” and “closing” of the debt securities included in the pro forma financial information) Debt Financing (subject to the completion by such accountants of customary procedures relating thereto), to provide drafts thereof reasonably in advance of “pricing” and “closing” upon request of Parent and to assist with the due diligence activities and audit and review, as applicable, of the Business included Required Financial Information and (y) cooperate with the independent registered public accountants for the Company in any offering documents relating to connection with the Committed Financing that consists issuance of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, such comfort letters (including by executing customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standardsmanagement representation letters); provided, however that neither Trimble nor such cooperation does not:
(i) require the entry by Company or any of its Subsidiaries shall (A) into any agreement or commitment that would be required effective prior to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement the Effective Time and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing that is not contingent upon on the occurrence of the Closing Date Effective Time (other than customary authorization letters);
(ii) interfere in any material respect with the ongoing business or operations of the Company and its Subsidiaries;
(Diii) be required to take include any action actions that will the Company reasonably believes would (xA) result in a violation of any material Contract, including the Existing Credit Agreement and the Company Notes, or confidentiality agreement or any Law, or the loss of any legal or other privilege, (B) conflict with or violate ▇▇▇▇▇▇▇’▇ the Company’s organizational documents or (C) cause any representation, warranty, covenant or other obligation in this Agreement to be breached or any condition set forth in ARTICLE VII to fail to be satisfied;
(iv) require the payment of its Subsidiaries’ Organizational Documents (any fees or reimbursement of any expenses prior to the extent Closing for which the Company has not received prior reimbursement or is not otherwise indemnified by Parent or subject to reimbursement hereunder;
(v) cause any provision creating such conflict was not created in contemplation director, officer or employee of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble Company or any of its Subsidiaries is a party to the extent not entered into in contemplation incur any personal liability (including that none of the provisions in this Section 7.15(d). Trimble hereby consents to board of directors of the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble Company or any of its Subsidiaries that is not maintaining such position following the Closing shall be required to enter into any resolutions or take any similar action approving the reputationFinancing until the Closing has occurred); require the delivery of any projections, pro forma financial information or any other forward-looking information to any third parties; or
(vi) require the delivery of any financial statements in a form or subject to a standard different than those provided to Parent on or prior to the date hereof. Upon the earlier to occur of the Effective Time and the valid termination of this Agreement in accordance with ARTICLE VIII, Parent shall, promptly upon request of the Company, reimburse the Company for all reasonable out-of-pocket costs incurred by the Company or any of its Subsidiaries in connection with such cooperation, including all fees and expenses of counsel and other advisors.
(f) Parent shall take all actions and do all things necessary, proper or advisable to obtain the Equity Financing, including by (i) maintaining in effect the Equity Commitment Letter, (ii) using reasonable best efforts to ensure the accuracy of all representations
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this AgreementAgreement and the Financing Letters, AGCO shall Parent will use its commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary or reasonably proper or advisable to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth described in the Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing TermsLetters, and AGCO shall will not permit consent to any amendment or modification to be made to, or any waiver of any provision underor remedy under (1) the Equity Funding Letters whatsoever (except to increase the amount of the Equity Financing) and (2) the Debt Commitment Letter, in the Commitment Letter or the Fee Letter case of this clause (or following entry into definitive documents relating 2), solely to the Committed Financing, such definitive documents) if extent such amendment, modification or waiver would (Ai) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces reduce the aggregate principal amount of the Committed Debt Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Equity Financing is increased by a corresponding amount or the Committed Financing is Parent otherwise made has available funds in an amount at least equal to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)reduction), or (Bii) imposes impose new or additional conditions conditions, or otherwise expandsamend, amends modify or modifies expand any conditions, to the receipt of the conditions to Debt Financing, in the Committed Financingcase of either clause (i) or (ii) above, in a manner that would, in the case of this subclause (B), would reasonably be expected to (xA) prevent or materially delay or prevent the Closing or Closing, (B) make the availability funding of the Committed Financing on the Closing Date taking into account the expected timing (or satisfaction of the Closing Date, taking into account conditions to obtaining the expected timing of Financing) less likely to occur at the Marketing Period, Effective Time or (yC) adversely impact the ability of AGCO Parent or Purchaser to enforce its rights against the other parties to the Financing Letters or the definitive agreements with respect thereto or the ability of Parent or Purchaser to consummate the Transactions; provided, however, that Parent and Purchaser may (i) amend the Debt Commitment Letter to add lenders, lead arrangers, bookrunners, agents, syndication agents, documentation agents or similar entities who had not executed the Debt Commitment Letter as of the date of this Agreement, (ii) amend or otherwise modify the Debt Commitment Letter to implement any flex provisions applicable thereto or (iii) otherwise amend, modify or replace, or agree to any waivers in any material respect of, the Debt Commitment Letter so long as (the terms of any x) such amendment, modification modification, replacement or waiver does not impose new terms or conditions that would reasonably be expected to materially delay or prevent the Closing, (y) the terms thereof are not less beneficial with respect to conditionality or enforcement, taken as a whole, to Parent or Purchaser than those in violation the Debt Commitment Letter as in effect on the date of these clauses (A) this Agreement and (B)z) with respect to replacements, the “Permitted replacement debt commitments otherwise satisfy the terms and conditions of an Alternative Financing Terms”); provided, that subject to compliance with set forth below. In the other provisions event of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification modification, replacement or replacement. For purposes waiver of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Debt Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) the proviso to the immediately preceding sentence, the financing under such amended, modified, replaced or waived Debt Commitment Letter will be deemed to be amended, modified or replaced and references to “Commitment LetterDebt Financing” shall include as such document as permitted by term is used in this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall Agreement. Parent will use its commercially reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (AI) maintain in effect the Commitment Letter Financing Letters (including any definitive agreements entered into in accordance with connection therewith) until the terms earlier of the consummation of the Transaction and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consenttermination of this Agreement, (xII) enter into other debt financing arrangements satisfy on a timely basis all conditions in the Financing Agreements and in the Equity Funding Letters applicable to Parent and Purchaser (any such debt financing, a “Permanent Financing” and, together with and that are within their control) to obtaining the Committed Financing, the “Available Financing”(III) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Debt Financing contemplated by the Commitment Letter on the terms and conditions contained in the Debt Commitment Letter (including as modified, to the extent exercised, by the flex provisions applicable thereto) or otherwise consistent in all material respects with the Debt Commitment Letter, or on other terms acceptable to Parent that would not (i) reduce the aggregate principal amount of the Debt Financing (unless the Equity Financing is increased by a corresponding amount or Parent otherwise has available funds in an amount at least equal to such reduction), or (ii) impose new or additional conditions, or otherwise amend or modify any conditions, to the receipt of the Debt Financing, in the case of either clause (i) or (ii), in a manner that would reasonably be expected to materially delay or prevent the Closing (such definitive agreements, together with the Debt Commitment Letter, the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing TermsAgreements”), and (CIV) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior to the Closing Date(which efforts shall include, as applicable, including using its reasonable best efforts to cause making demand upon the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before to the final day extent the conditions thereto have been satisfied (other than those which are dependent upon, or are to occur simultaneously with, the funding of the Marketing Period.
(c) AGCO Financing, it being agreed that such efforts shall give Trimble prompt notice (x) not require the commencement of litigation against any breach or default by any party lenders). Upon the Company’s request, Parent will keep the Company reasonably informed on a timely basis of the status of Parent’s and Purchaser’s efforts to obtain the Commitment Letter or definitive agreements relating Debt Financing and to satisfy the Committed Financing of which AGCO has Knowledge if such breach or default would result conditions thereof, including advising and updating the Company, in a material delay ofreasonable level of detail, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential status, proposed Closing Date and material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions terms of the Commitment Letter or material definitive agreements relating to documentation for the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or Debt Financing. If any portion of the Committed Financing becomes reasonably likely to be unavailable on the material terms and conditions, in the manner or from the Committed Financing Sources conditions contemplated by the Commitment Letter applicable Financing Agreements or definitive agreements relating the Equity Funding Letters (giving effect to, to the Committed Financing. As soon as reasonably practicable after extent exercised, the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (xflex provisions applicable thereto), (yi) or Parent will promptly notify the Company and (zii) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used Parent will use its commercially reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal sufficient to consummate the unavailable portion thereof, as the case may be Transactions (taking into account it being understood that Parent shall have no obligation to accept any reductions thereof pursuant to Section 7.15(b)(A)), with terms and or conditions not that are materially less favorable favorable, taken as a whole, to AGCO (or its Subsidiaries)Parent, as determined in Purchaser and the reasonable judgment of AGCO, Company than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative applicable Financing.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputation
Appears in 1 contract
Sources: Merger Agreement (Epiq Systems Inc)
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO The Purchaser shall use its reasonable best efforts to do, or cause to be done, all things reasonably necessary or advisable to obtain the Committed Debt Financing (taking into account as soon as reasonably practicable and, in any reductions thereof pursuant to Section 7.15(b)(A)) event, not later than the Closing Date, on substantially the terms and conditions (including, to the extent applicable, the “flex” provisions), taken as a whole, described in the Debt Commitment Letter and the Fee Letter, including using reasonable best efforts to (i) enter into definitive agreements with respect to the Debt Financing on substantially the terms and conditions (as such terms may be modified or adjusted (x) in accordance with the terms, and within the limits, of the flex provisions contained in any Fee Letter or (y) in accordance with the restrictions on amendments and modifications set forth in the immediately succeeding sentence) contemplated by the Debt Commitment Letter and the related Fee Letter (the “Definitive Debt Financing Agreements”) and (ii) satisfy in all material respects on a timely basis all conditions and covenants (including with respect to the payment of any “flex” provisions ticking, commitment, engagement or placement fees) applicable to and within the control of the Purchaser or the Affiliated Borrowers in the Debt Commitment Letter, the Fee Letter) or on such other terms Letter and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted the Definitive Debt Financing Terms, and AGCO Agreements. The Purchaser shall not permit agree to any amendment amendments or modification to be made modifications to, or grant any waiver of waivers of, any condition or other provision underunder the Debt Commitment Letter, the Commitment Fee Letter or the Fee Letter Definitive Debt Financing Agreements without the prior written consent of the Seller (such consent not to be unreasonably withheld, conditioned or following entry into definitive documents relating to the Committed Financing, such definitive documentsdelayed) if such amendment, modification or waiver would (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces reduce the aggregate amount (other than immaterial reductions) of the Committed Debt Financing (including by increasing changing the amount of fees to be paid or original issue discount unless of the Committed Debt Financing or similar fee) to an amount that (when combined with any equity financing and cash on hand) is increased by a corresponding less than the amount or needed to satisfy the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A))Uses, or (B) imposes impose new or additional conditions conditions, or otherwise expandsamend, amends modify or modifies expand any conditions, to the receipt of the Debt Financing or (C) otherwise amend, modify or waive any other provision of the Debt Commitment Letter, the Fee Letter or the Definitive Debt Financing Agreements, in each case of the foregoing clauses (B) and (C), only if in a manner that would (x) materially delay or prevent the funding of the Debt Financing (or satisfaction of the conditions to obtaining the Committed Debt Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) materially adversely impact the ability of AGCO the Purchaser to enforce its rights against the other parties to the Debt Commitment Letter or the Definitive Debt Financing Agreements or (z) materially adversely impact the ability of the Purchaser to timely consummate the transactions contemplated by this Agreement (it being understood that any amendment of the Debt Commitment Letter, the Fee Letter or the Definitive Debt Financing Agreements for the purpose of (I) adding lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Commitment Letter or the Fee Letter as of the date hereof or (II) extending the termination date set forth in the Debt Commitment Letter shall be permitted without the prior written consent of the Seller). Upon any material respect (the terms of any such amendment, modification or waiver not of the Debt Commitment Letter or the Definitive Debt Financing Agreements in violation of these clauses (A) and (Baccordance with this Section 6.11(a), the terms “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Debt Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended”, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent FinancingFee Letter” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputation
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the Committed Debt Financing on the terms and conditions described in the Debt Commitment Letter (taking subject to the immediately succeeding sentence and subject to the terms of any Alternative Financing), including by using its reasonable best efforts to (i) maintain in effect the Debt Commitment Letter, negotiating and entering into account any reductions thereof pursuant definitive agreements with respect to Section 7.15(b)(A)) the Debt Financing on the terms and conditions set forth in the Debt Commitment Letter (including any “flex” provisions or on other terms no less favorable, in the Fee Letteraggregate, to Parent and the Company, (ii) or satisfy on a timely basis all conditions applicable to Parent in such other terms and conditions definitive agreements that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Termswithin its control, and AGCO (iii) enforce its rights under the Debt Commitment Letter in the event of a material breach thereof by the counterparty thereof, and (iv) consummate the Debt Financing at or prior to the Closing. Parent shall not permit have the right from time to time to amend, replace, supplement or otherwise modify, or waive any amendment of its rights under, the Debt Commitment Letter, and/or substitute other debt or equity financing for all or any portion of the Debt Financing from the same and/or alternative financing sources, provided that any such amendment, replacement, supplement or other modification to be made to, or any waiver of of, any provision under, of the Debt Commitment Letter that amends the Debt Financing and/or substitution of all or any portion of the Fee Letter Debt Financing shall not, without the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or following entry into definitive documents relating to the Committed Financing, such definitive documentsdelayed) if such amendment, modification or waiver (A) with respect add to, or expand upon, the conditions precedent to the Debt Financing as set forth in the Debt Commitment Letter or the Fee Letter or such definitive documentsin any respect, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new prevent, impede or additional conditions or otherwise expands, amends or modifies any delay the consummation of the conditions to Merger and the Committed Financingother transactions contemplated by this Agreement, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (yC) adversely impact the ability of AGCO Parent to enforce its rights against the other parties counterparty to the Debt Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles toLetter, or between or among, (D) impose additional material obligations on the Company and any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacementits Subsidiaries. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing SourceAgreement, references to “Committed Debt Financing” shall mean and include the financing contemplated by the Debt Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified modified, replaced, supplemented or replaced substituted by this Section 8.3(a) and references to “Debt Commitment Letter” shall include such document documents as permitted by this Section 7.15(a) to be amended, modified modified, replaced, supplemented or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account substituted by this Section 8.3(a). In the anticipated timing of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or event any portion of the Committed Debt Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter (including the flex provisions therein) and for any reason, as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior to the Closing, Trimble Parent shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings obtain alternative financing from alternative sources (the “Alternative Financing”) as promptly as practicable following the occurrence of the type contemplated by the Commitment Letter such event in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary an amount sufficient to consummate the Available transactions contemplated by this Agreement. For all purposes of and under this Agreement, the term “Debt Financing” shall also mean and include any Alternative Financing (including any amendment, modification, replacement, supplement or substitution of any such alternative financing as permitted by this Section 8.3(a)). Parent shall keep the Company fully and for such Required Information to remain Compliant;
(iii) promptly apprised as to the extent reasonably requested by AGCO, (A) assisting in the preparation status of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as ofmaterial developments relating to, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Debt Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputation.
Appears in 1 contract
Financing. (a) Subject to From the terms and conditions date of this AgreementAgreement and until the Closing, AGCO shall Parent will use its reasonable best efforts to obtain take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to (i)(A) maintain in full force and effect the Committed Financing Commitment Letters (taking into account any reductions subject to amendment or replacement thereof pursuant to in accordance with this Section 7.15(b)(A8.9(a)) until the earlier of the consummation of the Transactions and the valid termination of this Agreement and (B) arrange, obtain and consummate the Financing on the terms and conditions set forth contemplated by the respective Commitment Letters (subject to amendment or replacement thereof in accordance with this Section 8.9(a)), (ii) enter into definitive written agreements with respect to the Capital Financing on terms and conditions contained in the Financing Commitment Letters and the Debt Financing Fee Letter (subject to amendment or replacement thereof in accordance with this Section 8.9(a)) (including any “flex” provisions applicable to the Debt Commitment Letter) or, in Parent’s sole discretion, on other terms than those contained in the Financing Commitment Letters (including any “flex” provisions applicable thereto) and the Debt Financing Fee Letter) or on , in each case, which such other terms and conditions shall not shall not constitute a Prohibited Financing Amendment (with such agreements to be in effect no later than the Closing Date) (such definitive agreements governing the Capital Financing, the “Capital Financing Agreements”), (iii) satisfy on a timely basis all obligations applicable to Parent under the Commitment Letters that are acceptable within the control of Parent, (iv) upon satisfaction of the conditions set forth in the Commitment Letters (other than those to AGCO so long as such other terms be satisfied at the Closing, but subject to the satisfaction or waiver of those conditions at Closing), consummate the Financing no later than at the Closing and conditions constitute Permitted Financing Terms(v) fully enforce its rights under the Commitment Letters. Without the prior written consent of the Company, and AGCO Parent shall not permit any amendment amendment, replacement or modification to be made to, or any waiver of any provision underor remedy under (1) the Financing Commitment Letters, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, replacement, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Capital Financing below the amount, taking into account all other sources of proceeds, necessary to fund the Required Funding Amount unless (including by increasing I) in the case of any such reduction with respect to the aggregate amount of fees committed under the Debt Commitment Letter contemplated to be paid or original issue discount unless funded on the Committed Closing Date, the Equity Financing that is provided by the Equity Investors pursuant to the Equity Commitment Letters (as amended in accordance with this Section 8.9(a)) is increased by a corresponding an amount or the Committed Financing is otherwise made available equal to fund such fees or original issue discountreduction and (II) from that contemplated in the case of any such reduction with respect to the aggregate amount committed under the Preferred Equity Commitment Letter or such definitive documents contemplated to be funded on the Closing Date, (other than x) the Equity Financing that is provided by the Equity Investors pursuant to the Equity Commitment Letters (as amended in accordance with its this Section 8.9(a)) is increased by an amount equal to such reduction and/or (y) Parent obtains one or more additional equity financing commitment letters, pursuant to which one or more equity investors approved by the Company (such approval not to be unreasonably, withheld, conditioned or delayed) commits to invest in Parent, on or prior to the Closing, an amount equal to such reduction on terms or unless concurrently replaced by commitments from other and conditions that shall not, without the prior written consent of the Company, affect any Prohibited Financing Amendment (such additional equity financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)under this clause (y), or the “Replacement Equity Financing” with any such Replacement Equity Financing being deemed to constitute “Capital Financing”, and the equity commitment letter with respect thereto being deemed to constitute a “Financing Commitment Letter”); (B) imposes new or additional conditions or otherwise expands, amends or modifies expands any of the conditions conditions, in each case, to the Committed Financing, receipt of the Capital Financing in a manner that would, in the case of this subclause (B), would reasonably be expected to (xI) prevent or materially delay or prevent the Closing or (II) make the availability timely funding of the Committed Capital Financing contemplated to be funded on the Closing Date taking into account the expected timing or satisfaction of the conditions to obtaining the Capital Financing on or prior to the Closing Date, taking into account Date less likely to occur; or (C) otherwise would reasonably be expected to (I) materially delay or prevent the expected timing Closing; (II) make the timely funding of the Marketing Period, Capital Financing or satisfaction of the conditions to obtaining the Capital Financing on or prior to the Closing Date less likely to occur; or (yIII) adversely impact the ability of AGCO Parent to enforce its rights against the any other parties party to the Financing Commitment Letters (it being understood and agreed that, in any event, Parent may amend the Financing Commitment Letters solely to add lenders, agents, co-agents, arrangers, bookrunners, managers or similar entities that have not executed such Financing Commitment Letter in any material respect as of the date of this Agreement) (the terms of any such amendment, modification or waiver not limitations set forth in violation of these clauses this clause (A) and (B1), the “Permitted Prohibited Financing TermsAmendments”); provided, ) or (2) the Equity Commitment Letters. In the event that subject any portion of the Capital Financing becomes unavailable to compliance with Parent on the other provisions of this Section 7.15, AGCO may amend terms and conditions set forth in the Debt Commitment Letter and Debt Financing Fee Letter or such definitive documents to correct typographical errorsfrom the parties thereto, add additional lenders, arrangers Parent will promptly notify the Company and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall will use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the obtain alternative capital financing on terms and subject conditions not less favorable to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, Parent (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to such terms (but not, for the Committed Financing contemplated avoidance of doubt, such conditions), as determined in good faith by the Commitment Letter on the terms and conditions Parent) than those contained in the Financing Commitment Letters and the Debt Financing Fee Letter as of the date of this Agreement (including the any “flex” provisions included applicable thereto) or, in Parent’s sole discretion, on other terms than those contained in the Financing Commitment Letters and the Debt Financing Fee Letter) Letter as of the date of this Agreement (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Termsincluding any “flex” provisions applicable thereto), in each case, from the same or alternative sources in an amount sufficient, when added to any portion of the Financing still available, to fund the Required Funding Amount as promptly as reasonably practicable (C) satisfy all conditions the “Alternative Financing” with any such Alternative Financing being deemed to funding in constitute “Capital Financing”, the Commitment Letter and such definitive agreements debt commitment letter with respect thereto that are within its control andbeing deemed to constitute a “Financing Commitment Letter”, subject the fee letter with respect thereto being deemed to satisfaction constitute a “Debt Financing Fee Letter” and the definitive documentation with respect thereto being deemed to constitute the “Capital Financing Agreements”); provided that, without the prior written consent of all conditions to fundingthe Company, to consummate the Committed such Alternative Financing at or prior shall not affect any Prohibited Financing Amendments. Parent shall deliver to the Closing DateCompany true, as applicable, including using its reasonable best efforts correct and complete copies of the executed debt commitment letter with respect to cause the lenders such Alternative Financing (and the other persons committing to fund related fee letter, which may be redacted in the Committed Financing on manner set forth in Section 5.8) promptly following the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect theretoexecution thereof. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO Parent shall give Trimble the Company prompt written notice of (xw) any material breach or default (or any event or circumstance that with or without the lapse of time, or both, would give rise to any breach or default default) by any party to the Commitment Letter Letters of any material provision which Parent has become aware, (x) the expiration or definitive agreements relating to the Committed Financing termination in writing (or attempted or purported termination in writing, whether or not valid) of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed FinancingCommitment Letter, (y) of the receipt by Parent of any written or electronic (including email) notice or other communication, in each case from communication by any Committed investor or Financing Source party to the applicable Commitment Letter with respect to any actual or potential threatened in writing material breach, material default, termination or repudiation by any party to the any Commitment Letter or definitive agreements relating any refusal to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay ofprovide, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith stated intent that it will not provide, by any investor or Financing Source party to the applicable Commitment Letter, the full amount of the Equity Financing or the Capital Financing contemplated by the applicable Commitment Letter for any reason or (z) Parent’s or Merger Sub’s good faith belief, for any reason, that it would or it is reasonably likely that it would no longer be able to obtain all or any portion of any Financing to be funded at Closing and shall otherwise keep the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as Company reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) informed of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence status of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best Parent’s efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal the Financing upon the written request of the Company. Notwithstanding anything to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined contrary contained in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubtthis Agreement, in no event shall the reasonable best efforts obligation of Parent require or be deemed or construed to require Parent to (I) seek equity financing from any source (other than the Equity Financing) or (II) pay aggregate fees in excess of those contemplated by the Financing Commitment Letters (whether to secure waiver of any conditions contained in any Commitment Letter). For the avoidance of doubt, nothing in this Section 8.9(a) shall require Parent or Merger Sub to disclose any information that is subject to the attorney-client or work product privilege or similar privilege or the disclosure of which would result in the breach of any of Parent’s or Merger Sub’s confidentiality obligations set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Financing Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative FinancingLetters.
(db) Prior to From the date of this Agreement and until the Closing, Trimble the Company shall use its reasonable best efforts to provide to AGCOprovide, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries each Subsidiary of the Company to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ RepresentativesRepresentatives to provide, such cooperation in connection with arranging and seeking to provide to AGCO, at AGCO’s sole expense, all cooperation obtain the Capital Financing as may be reasonably requested by AGCO Parent, including to use reasonable best efforts to (i) make available to Parent, its advisors and that its Financing Sources such financial and other pertinent information regarding the Company and each Subsidiary of the Company as may be reasonably requested by Parent, its advisors or its actual or potential Financing Sources, including, but not limited to, (I) such information as is necessary to allow Parent, its advisors and customarily required for financings its Financing Sources to prepare pro forma financial statements and marketing materials and (II) customary authorization letters (including customary representations with respect to accuracy of information and material non-public information); provided, that the type contemplated by Company is given a reasonable opportunity prior to execution to review and provide comments on such authorization letters and such information distributed to prospective lenders in connection therewith; (ii) assist with the Commitment Letter preparation of reasonably requested lender and investor presentations, rating agency presentations, bank information memoranda, marketing materials and other similar documents and materials in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management Capital Financing and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) participating in a reasonable number of meetings, presentations, road shows, presentations, conference calls, drafting sessions and due diligence sessionssessions (in each case, sessions including via video conference) with rating providers or potential providers of the Capital Financing and ratings agencies and potential lenders and other customary syndication activities and reasonably cooperating with otherwise assisting in the marketing efforts of AGCO Parent and the its Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters case to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for Capital Financings of such Required Information to remain Compliant;
type; (iii) to the extent reasonably requested by AGCOdeliver, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than at least four (4) Business Days prior to the Closing DateClosing, furnishing to AGCO and the Financing Sources Parent all documentation and other information as is reasonably requested in writing by the Parent, its advisors and its Financing Sources at least six nine (69) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under with respect to applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, including the USA PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters Act and beneficial ownership regulations (including “negative assurance” comfort and change period comfortbeneficial ownership certifications as under 31 C.F.R. § 1010.230); (iv) reasonably requested by AGCO assist with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ ’s preparation, negotiation and execution of definitive written financing documentation and the schedules and exhibits thereto (including loan agreements, guarantees, collateral agreements, hedging arrangements, customary officer’s certificates and corporate resolutions, as applicable) as may reasonably be requested and subject to the occurrence of the Closing; and (v) provide reasonable and customary assistance in the taking of all corporate and other equivalent organizational actions, subject to the occurrence of the Closing, reasonably necessary to permit the consummation of the Capital Financing on the Closing Date; it being understood that no such corporate or other equivalent organizational action will take effect prior to the Closing and the directors (other than directors that are continuing directors in their capacities as such) of the Company will not be required to approve the Capital Financing prior to the Closing Date; provided, however, that nothing in this Section 8.9 will require any such cooperation to the extent that it would (A) require the Company or any of its Subsidiaries’ Organizational Documents (Subsidiaries to pay any fees or reimburse any expenses prior to the extent Closing for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Parent, (B) require the Company or any provision creating such conflict was not created of its Subsidiaries to give or agree to give to any other Person any indemnities in contemplation connection with the Capital Financing that are effective prior to the Closing, (C) (i) provide access to or disclose any information that the Company reasonably determines is prohibited or restricted under applicable Law or that violates or waives any attorney-client or other applicable privilege or (ii) disclose or provide any information in connection with the Capital Financing, the disclosure of which, in the judgement of the Available FinancingCompany, could result in (x) the disclosure of any trade secrets, customer-specific data or any Laws competitively sensitive information not otherwise required to be provided under this Agreement or (y) the violation of any confidentiality obligation, (D) take any action which would result in the contravention ofCompany or any of its Subsidiaries or any of its or their respective Affiliates incurring any liability with respect to matters relating to the Capital Financing or cause any director, officer or that would reasonably employee of the Company or any of its Subsidiaries or any of its or their respective Affiliates or Representatives to incur any personal liability in connection with the Capital Financing, (E) cause any term, covenant, representation or warranty in this Agreement to be expected breached by the Company or any of its Affiliates or cause any condition to the Closing to fail to be satisfied, (F) conflict with, result in a any violation or breach of, or a default (with or without notice, lapse of time, or both) under, any Contract to which Trimble the Company’s or any of its Subsidiaries is a party Subsidiary’s respective Organizational Documents as in effect as of the date of this Agreement, or any applicable Law or Contracts (to the extent not entered into in contemplation of the provisions in this Section 7.15(d8.9(b). Trimble hereby consents ), (G) provide (1) pro forma financial information, including pro forma cost savings, synergies, capitalization or other pro forma adjustments desired to be incorporated into any pro forma financial information, (2) any financial statements or information that are not available to Company and not prepared in the reasonable use ordinary course of its the Company’s financial reporting practice, (3) any description of all or any component of the Capital Financing (including any such description to be included in any liquidity or capital resources disclosure or any “description of notes”), or (4) projections, risk factors or other forward-looking statements relating to all or any component of the Capital Financing (which items (1) through (4) shall be the sole responsibility of Parent) or (I) unreasonably interfere with the ongoing business operations of the Company and its Subsidiaries’ trademarks . The Company shall provide to Parent the financial statements required by paragraph (j) of Exhibit D to the Debt Commitment Letter with respect to the fiscal periods contemplated therein. Notwithstanding the foregoing, (i) neither the Company nor its officers or employees shall be required to execute or enter into any agreement with respect to the Capital Financing (other than (x) those officers or employees continuing in such roles after the Closing, and logos in connection solely with respect to agreements contingent upon the Available Financing; providedClosing and that would not be effective prior to the Closing, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputation(y
Appears in 1 contract
Sources: Merger Agreement (Envestnet, Inc.)
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO RG shall use its commercially reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth in the Commitment Letter (including including, if applicable, any “market flex” provisions contained in the Fee Letterrelated fee letter) or on such other terms and conditions that are acceptable described in the Debt Commitment Letters with respect to AGCO so long as such other terms and conditions constitute Permitted Financing Termsthe conditionality, timing, availability, and AGCO aggregate amount of the Financing (including the amounts to be funded thereunder at the Closing). RG shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, the Debt Commitment Letter Letters without the Company’s prior written consent (which consent shall not be unreasonably withheld, conditioned or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documentsdelayed) if such amendment, modification or waiver (Ai) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing to an amount below the amount of fees required to be paid or original issue discount unless satisfy the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any applicable payment obligations of the Company under this Agreement, (ii) impairs in any material respect the availability of the Financing, (iii) amends the conditions precedent to the Committed Financing, Financing in a manner that would, in the case of this subclause (B), would reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect or prevent the Closing, or (iv) adversely impacts in any material respect the terms ability of any such amendment, modification RG to enforce or waiver not in violation cause the enforcement of these clauses the rights of RG under the Debt Commitment Letters (A) and (B), the “Permitted Financing Terms”); provided, that subject RG may amend, supplement or replace the Debt Commitment Letters to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter add or such definitive documents to correct typographical errors, add additional replace lenders, arrangers and lead arrangers, bookrunners, agents or reallocate commitments similar entities so long as such action would not reasonably be expected to materially delay or assign or reassign titles or roles to, or between or among, any entities party theretoprevent the Closing). AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO RG shall use its commercially reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Periodi) to (A) maintain in effect the Debt Commitment Letter in accordance with Letters until the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount funding of the Committed Financing under the Commitment Letter (at or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale prior to Closing and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Debt Commitment Letter Letters on the terms and conditions contained in the Debt Commitment Letter Letters (including the including, if applicable, giving effect to any “market flex” provisions included contained in the Fee Letterany related fee letter) (or on such other terms that are acceptable no less favorable (taken as a whole) to AGCO so long RG, as such other terms and conditions constitute Permitted Financing Termsapplicable), (Cii) to satisfy on a timely basis all conditions to funding in receipt of the Commitment Letter and such definitive agreements with respect thereto Financing that are within its control andRG’s control, subject to (iii) upon satisfaction of all such conditions to fundingand the conditions set forth in Section 5.1 and Section 5.2, to consummate the Committed Financing at or prior to the Closing Date(with respect to amounts required to consummate the Merger and make other payments due at such time in accordance with the terms hereof) and (iv) to comply in all material respects with its obligations under the Debt Commitment Letters.
(b) If any portion of the Financing contemplated by the Debt Commitment Letters becomes unavailable on the terms and conditions (including, as if applicable, including using “market flex” provisions) contemplated by the Debt Commitment Letters, (i) RG shall promptly notify the Company and (ii) RG shall use its commercially reasonable best efforts to cause arrange and obtain alternative financing from the lenders same or alternative sources in an amount sufficient to consummate the Transactions with terms and conditions that are not materially less favorable in any respect from the other persons committing to fund standpoint of RG (as reasonably determined by RG) than the Committed Financing on terms and conditions set forth in the Closing Date Debt Commitment Letters and any related fee letters as promptly as reasonably practicable following the occurrence of such event (the “Committed Alternative Debt Financing”). RG shall promptly provide a true, correct and complete copy of each alternative financing commitment letter in respect of such Alternative Debt Financing Sources(“New Debt Commitment Letter”) to the Company. In the event any New Debt Commitment Letters are obtained, (i) any reference in this Agreement to the “Financing” shall include the debt financing contemplated by the Debt Commitment Letters as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Commitment Letters” or the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letters that are not superseded by a New Debt Commitment Letters at the time in question and the New Debt Commitment Letters to the extent then in effect, and (Diii) enforce its rights under any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter Letters that are not superseded by a New Debt Commitment Letters at the time in question and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required the New Debt Commitment Letters to consummate the Available Financing before the final day of the Marketing Periodextent then in effect.
(c) AGCO Upon the Company’s request, RG shall keep the Company reasonably informed of the status of its efforts to arrange the Financing and provide to the Company copies of the material definitive documents for the Financing. RG shall give Trimble the Company prompt notice notice: (xi) of any breach or default of any material provisions of the Debt Commitment Letters by any party to the Debt Commitment Letter or definitive agreements relating Letters related to the Committed Financing of which AGCO RG has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, knowledge; and (yii) of the receipt of any written notice or other communication, in each case written communication from any Committed a financing source for the Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Debt Commitment Letter Letters or any definitive agreements relating document related to the Committed Financing of or any material provisions of the Debt Commitment Letter Letters or any definitive agreements relating document related to the Committed Financing if such breachFinancing; provided, default, termination or repudiation would result that in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditionseach case, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating no event will RG be under any obligation to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide disclose any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other similar privilege if AGCO RG shall have used its reasonable best efforts to disclose such information in a way manner that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputation
Appears in 1 contract
Sources: Merger Agreement (Joe's Jeans Inc.)
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO Each 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 consummate and obtain the Committed applicable Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth (including the flex provisions) described in the applicable Commitment Letter Letters (including any “flex” provisions in the Fee Letter) or or, if available, on such other terms and conditions that are acceptable to AGCO the applicable Purchaser in its sole discretion, so long as such other terms do not include or result in a Prohibited Modification (as defined below)) and conditions constitute Permitted Financing Terms, and AGCO shall not agree to or permit (i) in the case of the applicable Equity Commitments Letters, any early termination, replacement, amendment or modification to be made tothereof, or any waiver of any provision underthereunder (except any amendment or modification to increase the amount of Equity Financing available thereunder or any termination, replacement, amendment or modification expressly provided for therein) or (ii) in the case of the applicable Debt Commitment Letter Letters, any early termination, replacement, amendment or modification thereof, or any waiver of any provision thereunder, except in the Fee Letter case of this clause (or following entry into definitive documents relating to the Committed Financingii) any such termination, such definitive documents) if such replacement, amendment, modification or waiver that would not (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces reduce the aggregate amount of the Committed applicable Debt Financing (including by increasing to an amount that, together with the amount of fees to the applicable Equity Financing, would be paid or original issue discount unless less than the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available required to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), applicable Required Amount or (B) imposes impose new or additional conditions or otherwise expands, amends expand or modifies adversely amend or adversely modify any of the conditions to the Committed Financing, receipt of the applicable Financing in a manner that would, in the case of this subclause (B), would reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date (taking into account the expected timing of Closing pursuant to Section 2.3) or prevent the Closing Date, funding of the applicable Financing (or satisfaction of the conditions to the applicable Financing (taking into account the expected timing of Closing pursuant to Section 2.3)) on the Marketing Period, Closing Date or (y) adversely impact the ability of AGCO such Purchaser to enforce its rights against the other parties to the applicable Commitment Letter Letters or, if and to the extent in any material effect, the definitive agreements with respect thereto or to consummate the transactions contemplated hereby (the terms of any such amendment, modification or waiver not effects described in violation of these clauses (A) and (B), the collectively, “Permitted Financing TermsProhibited Modifications”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO Zayo Purchaser may amend the Zayo Debt Commitment Letter or such definitive documents and EQT Purchaser may amend the EQT Debt Commitment Letter, in each case, in a customary manner to correct typographical errors, add additional lenders, arrangers and lead arrangers, bookrunners, syndication agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any similar entities party theretowho had not executed the applicable Debt Commitment Letter as of the date hereof. AGCO The applicable Purchaser shall promptly deliver to Trimble Parent copies of any such early termination, amendment, modification modification, waiver or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO Each Purchaser shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing PeriodA) to (A) maintain in effect the applicable Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required AmountLetters, (B) taking into account the expected timing of the Marketing PeriodClosing pursuant to Section 2.3, to negotiate and enter into on the Closing Date definitive agreements with respect to the Committed applicable Debt Financing contemplated by the Commitment Letter on the terms and conditions contained (including the flex provisions) described or contemplated in the applicable Debt Commitment Letter (including the “flex” provisions included in the Fee Letter) (or or, if available, on such other terms that are acceptable to AGCO such Purchaser in its sole discretion, so long as such other terms and conditions constitute Permitted Financing Termsdo not include or result in a Prohibited Modification), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the applicable Commitment Letter Letters and, if and any to the extent in effect, the definitive documentation in respect of the applicable Debt Financing, (D) to comply in all material respects with its obligations under each of the applicable Commitment Letters and (E) to satisfy (and cause its Affiliates to satisfy) on a timely basis (or, if reasonably required to obtain the applicable Debt Financing, seek the waiver of) all conditions to the funding or investing of the applicable Financing applicable to such Purchaser and its Affiliates in the applicable Commitment Letters and the definitive agreements with respect theretorelated thereto that are within the control of, and are to be satisfied by, such Purchaser or its Affiliates. Trimble acknowledges Each Purchaser shall keep Parent informed on a reasonably current basis and agrees that AGCO shall not be required to consummate the Available Financing before the final day in reasonable detail of the Marketing Period.
(c) AGCO status of its efforts to arrange the applicable Debt Financing and, upon written request to such Purchaser, provide to Parent executed copies of the definitive agreements for the applicable Debt Financing. Each Purchaser shall give Trimble Parent prompt notice notice, and keep Parent informed on a reasonably current basis and in reasonable detail, of (xi) of any breach actual material breach, material default, termination(other than in accordance with its terms) or default repudiation by any party to the any applicable Commitment Letter or definitive agreements relating or, if and to the Committed extent in effect, definitive documents related to any applicable Debt Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, Purchaser becomes aware; (yii) of the receipt by such Purchaser (or any of its respective Affiliates) of any written notice or other communication, in each case written communication from any Committed Debt Financing Source or any Sponsor party to any applicable Equity Commitment Letter with respect to any (A) actual or potential material breach, material default, termination (other than in accordance with its terms) or repudiation by any party to the any applicable Commitment Letter or definitive agreements relating or, if and to the Committed extent in effect, any definitive document related to the applicable Debt Financing of or any provisions of the any applicable Commitment Letter or definitive agreements relating or, if and to the Committed extent in effect, any definitive document related to the applicable Debt Financing or (B) material dispute or disagreement between or among any parties to any applicable Commitment Letter or, if such breachand to the extent in effect, defaultany definitive document related to the applicable Debt Financing (but excluding, termination or repudiation would result in a material delay offor the avoidance of doubt, or in any way limit, ordinary course negotiations with respect to the availability terms of the Committed applicable Debt Financing or any definitive documents related thereto); and (ziii) if at any time for any reason AGCO believes in good faith and when such Purchaser becomes aware that it will not be able to obtain all or any portion of the Committed applicable Financing may not be available on the Closing Date on the terms and conditions, conditions set forth in the manner or from the Committed Financing Sources contemplated by the applicable Commitment Letter or definitive agreements relating to the Committed FinancingLetters. As soon as reasonably practicable after the date Trimble Parent delivers to AGCO the applicable Purchaser a written request, AGCO such Purchaser shall provide any information reasonably requested by Trimble Parent relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentencesentence with respect to such Purchaser or the applicable Financing; provided that AGCO in no event shall not any Purchaser be required to share any information with Trimble Parent that is subject to attorney-client or other privilege (provided, that, such Purchaser shall work in good faith to use reasonable best efforts to provide access to or disclose any such information in a manner which would not jeopardize such privilege). If any portion of any Purchaser’s applicable Debt Financing becomes unavailable, such Purchaser shall use its reasonable best efforts to arrange and obtain in replacement thereof, as promptly as reasonably practicable, alternative financing from the same or alternative sources in an amount sufficient, when taken together with the available portion of the applicable Debt Financing and the applicable Equity Financing, to fund the applicable Required Amount on the Closing Date (“Alternative Financing”); provided that in no event shall any Purchaser be required to, and in no event shall its reasonable best efforts be deemed or construed to require that it (A) obtain Alternative Financing that (1) includes terms (including any “market flex” provisions applicable thereto), taken as a whole, that are materially less favorable to such Purchaser than those contained in the applicable Debt Commitment Letter (including any “market flex” provisions applicable thereto) in effect on the date hereof (it being understood that any fees (based on a percentage of funds) or any interest rate amounts or original issue discounts, in each case, in excess of those contemplated by the applicable Debt Commitment Letter as in effect on the date hereof (taking into account any “market flex” provisions contained therein) shall be deemed to be materially less favorable to such Purchaser), (2) involves any conditions to funding of the applicable Debt Financing that are not contained in the applicable Debt Commitment Letter as in effect on the date hereof or (3) would reasonably be expected to prevent, impede, or delay the consummation of the transactions contemplated by this Agreement, (B) seek or obtain any equity financing in excess of the amount provided for in, or from a Person other than the counterparties to, the applicable Equity Commitment Letters as in effect on the date of this Agreement, (D) amend or waive any of the terms or conditions hereof or under the applicable Debt Commitment Letter or (E) share any information with Parent that is subject to attorney-client or other privilege if AGCO Purchaser shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred ; provided, further, that failure to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form not relieve any Purchaser of any such equity financing)obligation hereunder. AGCO Each Purchaser shall promptly deliver to Trimble true true, correct and complete copies of all written agreementsany debt commitment letter and related fee letter (in the case of any such fee letter, arrangements or contracts (including any side letters or (subject to customary redactions) fee lettersredacted in a manner consistent with the applicable Redacted Fee Letter) pursuant to which any such alternative source shall have committed to provide any Alternative Financing to such Purchaser (the “Alternative Financing Commitment Letter”). As applicable, references in this Agreement (other than with respect to representations in this Agreement made by such Purchaser that speak as of the date hereof) to (i) “Debt Financing” (or “Zayo Debt Financing” or “EQT Debt Financing”, as applicable) shall include any such Alternative Financing and (ii) “Debt Commitment Letter” (or “Zayo Debt Commitment Letter” or “EQT Debt Commitment Letter”, as applicable) shall include any such Alternative Financing Commitment. Each Purchaser will fully pay, or cause to be paid, all commitment and other fees under or arising pursuant to the applicable Debt Commitment Letter that are due and payable on or prior to the Closing Date as and when they become due and payable.
(dc) Prior to the ClosingClosing Date, Trimble Parent shall use reasonable best efforts to, and shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries the Transferred Entities to use their respective reasonable best efforts to provideto, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ RepresentativesRepresentatives to use reasonable best efforts to, to provide to AGCO, at AGCO’s sole expense, all such cooperation as is reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter each Purchaser in connection with the applicable Debt Financing, any applicable ABS Financing or any other permitted replacement, amended, modified or alternative financing (with respect to any Purchaser, collectively with the applicable Debt Financing and any applicable ABS Financing, the applicable “Available Financing. Without limitation ”), in each case at the sole cost and expense of the generality of the foregoingapplicable Purchaser, such reasonable best efforts shall includeincluding, without limitation:
(i) upon reasonable noticefurnishing such Purchaser and any Debt Financing Source in respect of the applicable Available Financing, participation by management promptly following such Purchaser’s request, with such customary and Representatives of Trimblepertinent financial information, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetingsoperating data, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders business and other customary syndication activities and reasonably cooperating with information (including diligence information) regarding the marketing efforts of AGCO applicable Business and the Financing Sources, related Transferred Entities (including information to be used in each case, the preparation of one or more information packages regarding the applicable Business) as reasonably requested by such Purchaser in connection with the arrangement or marketing of the applicable Available Financing or the preparation of any definitive documentation or any syndication, offering or other similar marketing materials and/or documents (including any offering memorandum) or rating agency or lender presentations relating to, or in connection with, the applicable Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of furnishing such Purchaser, promptly following such Purchaser’s request, with the applicable Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance (including any updates thereto as may be reasonably requested by AGCO necessary in the preparation discretion of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred Purchaser in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputation,
Appears in 1 contract
Financing. (a) Subject Neither Parent nor Merger Sub shall agree to any amendment, replacement, supplement or other modification of, or waive any of its rights or any rights in favor of the terms and conditions Company under, any Financing Commitment or any definitive agreements related to any Financing Commitment, in each case, without the prior written consent of this Agreement, AGCO shall use its reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth in the Commitment Letter Company (including any “flex” provisions in the Fee Letter) such amendment, replacement, supplement or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision underof the Financing Commitments that amends, supplements or otherwise modifies the Commitment Letter or the Fee Letter (or following entry into definitive documents relating conditions precedent to the Committed FinancingFinancing Commitments), such definitive documents) if such amendment, replacement, supplement or other modification of, or waiver of any provision would reasonably be expected to (Ax) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces reduce the aggregate amount of the Committed Debt Financing below the amount of cash funded at Closing required to consummate the Merger and repay or refinance the debt contemplated in this Agreement or in the Financing Commitments including all fees and expenses related in each case thereto (including by increasing changing the amount of fees to be paid or original issue discount of the Debt Financing or similar fees) unless the Committed Equity Financing is increased by a corresponding amount or (or, in the Committed Financing is otherwise made available to fund such case of additional fees or original issue discount, such Debt Financing permits such amounts to be funded under a revolving credit facility at Closing) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (By) imposes impose new or additional conditions or otherwise expands, amends amend or modifies expand any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability receipt of the Committed Debt Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation (1) expand the conditions precedent or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party contingencies to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely funding at Closing in a manner that is not intended to nor would be reasonably likely to harm make the funding of the Debt Financing (or disparage Trimble satisfaction of the conditions to obtaining the Debt Financing) less likely to occur or any prevent or delay the consummation of its Subsidiaries or the reputationtransactions
Appears in 1 contract
Sources: Merger Agreement (Transunion Corp.)
Financing. (a) Subject to the terms Holdings, Parent and conditions of this Agreement, AGCO Merger Sub shall (i) use its their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary or advisable to arrange and obtain the Committed Financing (taking into account any reductions thereof pursuant Financing, subject to their rights set forth in Section 7.15(b)(A5.12(e)) , on the terms and conditions set forth described in the Commitment Letter Letters (including any including, as necessary, the exercise of so-called “flex” provisions provisions) (or, in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver case of any provision under, the Debt Commitment Letter or and the Fee Letter (or following entry into definitive documents relating to the Committed FinancingSBLC Commitment Letter, such definitive documents) on other available terms that would not, if such structured as an amendment, modification or waiver to such Commitment Letter, violate Section 5.12(e)) as promptly as reasonably practicable, including using reasonable best efforts to (A) with respect satisfy on a timely basis (or obtain the waiver of) all conditions to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount receipt of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced Letters and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on consistent with the terms and conditions contained in the applicable Commitment Letter Letters (including the “flex” provisions included in the Fee Letter) (provisions), as applicable, or on other available terms that, if structured as an amendment, modification or waiver to such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing TermsCommitment Letter, would not violate Section 5.12(e), (Cii) satisfy comply in all material respects with their obligations under the Commitment Letters, (iii) in the event that all conditions to funding contained in the applicable Commitment Letter and such or the definitive agreements with respect agreement related thereto that are within its control andhave been satisfied, subject to satisfaction draw or otherwise provide for the receipt of all conditions to funding, to consummate the Committed Financing at on or prior to the Closing Dateto the extent necessary to consummate the transactions contemplated hereby and (iv) to the extent required to obtain the Financing, as applicableenforce their rights under the Commitment Letters and definitive agreements related thereto in a timely and diligent manner.
(b) In the event any portion of the debt financing contemplated in the Debt Commitment Letter becomes unavailable on the terms and conditions (including any “flex” provisions) contemplated in the Debt Commitment Letter and such portion is reasonably required to consummate the transactions contemplated by this Agreement, including using its Holdings, Parent and Merger Sub shall use their reasonable best efforts to take, or cause the lenders to be taken, all actions and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not do, or cause to be required done, all things necessary or advisable to arrange to obtain alternative financing from alternative sources in an amount sufficient to consummate the Available transactions contemplated by this Agreement and on terms and conditions no less favorable, in the aggregate, to Parent and Merger Sub than those in the Debt Commitment Letter as promptly as practicable following the occurrence of such event. In the event Holdings, Parent and Merger Sub shall obtain alternative financing as contemplated by this Section 5.12(b), the other provisions of this Section 5.12 shall apply to such alternative financing as it applies to the Financing before contemplated by the final day of the Marketing PeriodDebt Commitment Letter, mutatis mutandis.
(c) AGCO In the event any portion of the debt financing contemplated in the SBLC Commitment Letter becomes unavailable on the terms and conditions (including any “flex” provisions) contemplated in the SBLC Commitment Letter and such portion is reasonably required to consummate the transactions contemplated by this Agreement, Holdings Parent and Merger Sub shall give Trimble prompt notice use their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary or advisable to arrange to obtain alternative financing from alternative sources in an amount sufficient to consummate the transactions contemplated hereby and on terms and conditions no less favorable, in the aggregate, to Parent and Merger Sub than those in the SBLC Commitment Letter as promptly as practicable following the occurrence of such event. In the event Holdings, Parent and Merger Sub shall obtain alternative financing as contemplated by this Section 5.12(c), the other provisions of this Section 5.12 shall apply to such alternative financing as it applies to the Financing contemplated by the SBLC Commitment Letter, mutatis mutandis.
(xd) Parent shall promptly (and in any event, within three (3) Business Days of becoming aware) notify the Company in writing (i) of any breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any breach or default) by Parent and/or Merger Sub under the Commitment Letters or any definitive agreements related thereto or, to the Knowledge of Parent, any other party to the any Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay ofagreement related thereto, or in any way limit, the availability of the Committed Financing, and (yii) of the receipt by Apex, Holdings, Parent or Merger Sub of any written notice or other communication, in each case communication from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the any Commitment Letter or any definitive agreements relating to the Committed Financing of agreement related thereto (including any provisions of the proposal by any investor named in any Commitment Letter to withdraw, terminate or definitive agreements relating to reduce the Committed Financing if such breachamount of financing contemplated by the applicable Commitment Letter) in each case, default, termination or repudiation would that could result in a material delay of, or in any way limit, the availability of the Committed Financing Parent and (z) if at any time for any reason AGCO believes in good faith that it will Merger Sub not be able to obtain all or receiving any portion of the Committed proceeds of the Financing on the terms and conditionsClosing Date; provided, that in the manner no event shall Holdings, Parent or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not Merger Sub be required to share disclose any information with Trimble that is subject to attorney-client or other similar privilege if AGCO Holdings, Parent or Merger Sub shall have used its their reasonable best efforts to disclose such information in a way that would not waive such privilegeprivilege or would (in the opinion of outside counsel) contravene any applicable Law. Upon In the occurrence of any circumstance referred to event that Apex, Holdings, Parent and/or Merger Sub do not provide access or information in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable reliance on the terms proviso to the immediately preceding sentence, Apex, Holdings, Parent and conditions (including Merger Sub shall provide notice to the flex provisions) contemplated in the Commitment Letter Company that such access or information is being withheld and Fee LetterApex, Holdings, Parent and such portion is reasonably required to effect the Closing, AGCO Merger Sub shall use its their reasonable best efforts to arrange communicate, to the extent feasible, the applicable information in a way that would not violate the applicable obligation or risk waiver of such privilege.
(e) Without the prior written consent of the Company, Holdings, Parent and obtain in replacement thereof alternative financing Merger Sub shall not consent to any termination of, amendment or modification to, or any waiver of any provision or remedy under, any Commitment Letter if such termination, amendment, modification or waiver (i) would impose new or additional conditions precedent or adversely change the conditions precedent set forth therein, (ii) would reduce the amount of the Financing contemplated therein, (iii) would adversely impact the ability of Holdings, Parent and/or Merger Sub to enforce their rights under the Commitment Letters or (iv) would otherwise reasonably be expected to delay or prevent the consummation of the transactions contemplated hereby or make the funding of the commitments thereunder less likely to occur (collectively, the “Alternative FinancingRestricted Commitment Letter Amendments”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For for the avoidance of doubt, in no event shall it is understood that, subject to the reasonable best efforts obligation limitations set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined 5.12 and in the reasonable judgment of AGCO, than the economic terms contained in the Debt Commitment Letter and SBLC Commitment Letter, Parent and Merger Sub may amend such Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents, initial purchasers or similar entities, but if and only if the Fee addition of such additional parties, individually or in the aggregate, and together with any amendments or modifications to the applicable Commitment Letters in connection therewith, would not result in the occurrence of a Restricted Commitment Letter (assuming Amendment). Each of Merger Sub and Parent shall, and shall cause their respective affiliates to, use reasonable best efforts to maintain the application effectiveness of the Commitment Letters until the transactions contemplated by this Agreement are consummated. For purposes of this Agreement, references to either “market flexCommitment Letter” provisionsand to the “Financing”, “SBLC Financing”, “Debt Financing” or “Equity Financing” (in each case, other than references to such terms for purposes of representations made at the date of this Agreement) shall include such document and such financing contemplated thereby as permitted or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted required by this Section 5.12 to be amended, modified, replaced or waived, in each case from and after such amendment, modification, replacement or waiver. Upon the form Company’s request to Parent, Holdings, Parent and Merger Sub shall keep the Company reasonably informed of any such equity financing). AGCO shall deliver the status of their efforts to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative arrange the Financing.
(df) Prior Apex, Holdings, Parent and Merger Sub acknowledge and agree that the obtaining of the Financing is not a condition to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, Closing and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use reaffirm their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary obligation to consummate the Available Financing transactions contemplated by this Agreement irrespective and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation independently of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case availability of the authorization and representation letters referred Financing, subject to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates fulfillment or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers waiver of the Company conditions set forth in Sections 6.1 and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputation6.2.
Appears in 1 contract
Financing. (a) Subject Each of Parent and Merger Sub shall use, and shall cause its Affiliates to use, its commercially reasonable 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 Financing on terms and conditions of this Agreementin the Financing Commitments (subject to the ability to amend, AGCO shall use its reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions modify, supplement or replace as set forth in the Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Termsherein), and AGCO shall not, without the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed), agree to or permit any amendment amendment, restatement, replacement, supplement or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) Financing Commitments if such amendment, restatement, replacement, supplement, modification or waiver (Ai) with respect reduces (or would reasonably be expected to have the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces effect of reducing) the aggregate amount of the Committed Financing from that contemplated by the Financing Commitments delivered as of the date hereof (including by increasing changing the amount of fees to be paid or original issue discount unless thereof) below an amount, when taken together with available cash of the Committed Financing is increased Parent and Merger Sub, sufficient to pay the Required Amount on the Closing Date, (ii) otherwise adversely affects in any material respect the ability or likelihood of the Closing or of Parent and Merger Sub to timely consummate the transactions contemplated by a corresponding amount or this Agreement, including the Committed Financing is otherwise made available ability to fund such fees or original issue discount) from that contemplated in pay the Commitment Letter or such definitive documents Required Amount, (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (Biii) imposes new or additional conditions precedent or otherwise expands, amends or modifies expand any of the existing conditions precedent to the Committed Financingfunding of the Financing described in the Financing Commitments or otherwise add, expand, amend or modify any other terms or provisions of the Financing Commitments as in effect on the date hereof, in each case, in a manner that would, in the case of this subclause (B), would reasonably be expected to (x) prevent prevent, materially delay or materially delay impede the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing DateClosing, taking into account the expected timing of the Marketing Period, or (yiv) adversely impact impacts in any material respect the ability of AGCO Parent or the Company, as applicable, to enforce its rights against the other parties to the Commitment Letter Financing Commitments or the Financing Agreements or (v) results in any material respect (the terms termination, withdrawal, repudiation or recission of any such amendmentFinancing Commitment or any Financing Agreement, modification or waiver not in violation release or terminate any of these clauses (A) and (B), the “Permitted commitments or obligations of the Guarantor or any of the Financing Terms”)Sources; provided, however, that subject to compliance with the other provisions of this Section 7.155.6, AGCO Parent may amend (or amend and restate) (x) the Debt Financing Commitment or the Financing Agreements to add lenders, lead arrangers, bookrunners, syndication agents or similar entities that had not executed the Debt Commitment Letter as in effect on the date hereof, (y) the Equity Commitment Letter, to increase the amount of Equity Financing available thereunder or such definitive documents (z) the Financing Commitments to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO Parent shall promptly deliver to Trimble the Company copies of any such amendment, restatement, supplement, replacement or modification or replacement. For purposes of this Section 7.15 and Section 5.6 and following the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedeffectiveness thereof.
(b) AGCO Each of Parent and Merger Sub shall, and shall cause its Affiliates and its and their respective officers, employees, advisors and other Representatives to, use its commercially reasonable best efforts to all things necessary, proper and advisable to arrange and obtain the Financing, at or prior to the Closing, on the terms and conditions contemplated by the Financing Commitments, including by using, in each case, commercially reasonable efforts to (taking into account i) comply in all material respects with its obligations under the anticipated timing applicable Financing Commitments and Financing Agreements, (ii) subject to amendments, modifications or replacements of the Closing Date and the Marketing Period) to (A) Financing Commitments otherwise permitted by this Section 5.6, maintain in effect the Commitment Letter applicable Financing Commitments and the Financing Agreements, as applicable, in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (xiii) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into the definitive agreements with respect to Debt Financing Commitments (any such agreements, collectively, the Committed “Financing contemplated by the Commitment Letter Agreements”), on a timely basis, on the terms and conditions contained not materially less favorable to Parent and Merger Sub than those set forth in the Commitment Letter Financing Commitments (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Termsmay be amended or modified as permitted by this Section 5.6), (Civ) satisfy all conditions and cause to funding in the Commitment Letter be satisfied (and such definitive agreements with respect thereto that are within its control cause their respective Affiliates to satisfy) on a timely basis (and, subject to satisfaction of all conditions to fundingin any event, to consummate the Committed Financing at or prior to the Closing DateClosing) all of the terms and conditions precedent to the funding of the Financing to be satisfied by and applicable to Parent (or any of its controlled Affiliates) to the Financing contemplated by the Financing Commitments and Financing Agreements (including by consummating the Equity Financing pursuant to the terms of the Equity Commitment Letter and by paying any commitment fees or other fees or deposits required by the Debt Financing Commitments or the Financing Agreements) and within its control, as applicable, including using its reasonable best efforts to cause (v) consummate the lenders and the other persons committing to fund the Committed Financing on no later than the Closing Date (the “Committed Financing Sources”) and (Dvi) enforce its rights under the Commitment Letter Financing Commitments. Following reasonable request from the Company, Parent shall keep the Company informed on a current basis and any definitive agreements in reasonable detail of the status and all material developments in its efforts to arrange the Financing and to satisfy the conditions thereof, including advising and updating the Company, and giving the Company prompt written notice, in a reasonable level of detail, with respect thereto. Trimble acknowledges to status, proposed closing date and agrees that AGCO shall not be required to consummate the Available Financing before the final day material terms of the Marketing Perioddefinitive documentation related to the Financing, providing copies of then current drafts of the credit agreement and other Financing Agreements, and giving the Company prompt notice of any material change with respect to the Financing and promptly giving the Company all information requested by the Company relating to the Financing or any circumstance referred to in the immediately preceding sentence.
(c) AGCO Parent shall give Trimble the Company prompt written notice upon Parent having knowledge of or becoming aware of (xA) of any expiration or termination of, violation, or any material breach or material default, or threatened (in writing) material breach or material default (or any event or circumstance that, with or without notice, lapse of time or both, would reasonably be expected to give rise to any material violation, material breach or material default) by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed FinancingFinancing Commitments or any Financing Agreement, (yB) any actual or threatened reduction, withdrawal, repudiation, recission or termination (including termination of any commitments) of the receipt of Financing by any written notice or other communication, in each case from any Committed Financing Source party to the Financing Commitments or any Financing Agreement, (C) any material dispute or disagreement between or among Parent, on the one hand, and the Financing Sources party to the Financing Commitments or Financing Agreements, on the other hand, with respect to any actual the obligation to fund or potential material breachinvest, material defaultas applicable, termination the Financing or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions amount of the Commitment Letter Financing to be funded or definitive agreements relating to invested, as applicable, at the Committed Financing if such breach, default, termination or repudiation would result in a material delay ofClosing, or in any way limit, the availability of the Committed Financing and (zD) if at any time for any reason AGCO Parent believes in good faith or has determined that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources conditions contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not Financing Commitments or Financing Agreements or will be required unable to share any information with Trimble that is subject to attorney-client obtain Alternative Debt Financing.
(d) If all or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Debt Financing becoming expires, terminates or becomes or would reasonably be expected to become unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of prior to the Committed Financing otherwise becomes unavailable Closing on the terms and conditions (including the flex provisions) contemplated in the Debt Financing Commitment Letter or the Financing Agreements applicable to such Debt Financing for any reason, or any of the Debt Financing Commitment or the Financing Agreements applicable to such Debt Financing shall be withdrawn, terminated, repudiated or rescinded for any reason, in each case such that the amount of the Debt Financing is not sufficient, when added to any portion of the Financing that is and Fee Letter, and such portion is reasonably required will be available prior to effect or at the Closing, AGCO to pay the Required Amount on the Closing Date, Parent shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”i) from alternative sources in an amount at least equal to the unavailable portion promptly upon becoming aware thereof, as notify the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined Company in the reasonable judgment writing of AGCO, than the terms and conditions set forth in the Commitment Letter such event and the Fee Letter (including the flex provisions therein) and as reasons giving rise to such event, promptly as reasonably practicable following the occurrence of such event. For , (ii) use, and Merger Sub shall use, its commercially reasonable efforts to arrange and obtain, as promptly as possible following the avoidance occurrence of doubtsuch event (and in any event no later than the Closing), and to negotiate and enter into definitive agreements with respect to, alternative financing from the same or alternative sources, in no event shall an amount sufficient, when added to any portion of the reasonable best efforts obligation Financing that is and will be available prior to or at the Closing and available cash of the Parent and Merger Sub, to pay the Required Amount on the Closing Date (“Alternative Debt Financing”), and (iii) obtain a new financing commitment letter (together with its related term sheets and fee letters, collectively, the “Alternative Debt Financing Commitment”) or a new definitive agreement with respect thereto (any such agreements, collectively, the “Alternative Debt Financing Agreements”) that provides for financing (A) on terms and conditions (including structure, covenants and pricing) that are not materially less favorable or materially more onerous (including by way of the imposition of new conditions or expansion of existing conditions), taken as a whole, to Parent and Merger Sub than the terms and conditions to the funding of the Debt Financing on the Closing Date as set forth in this Section 7.15 the Debt Financing Commitment without the Company’s written consent and (B) in an amount that is sufficient, when added to any portion of the Financing that is and will be construed so as available prior to require AGCO or at the Closing and available cash of the Parent and Merger Sub, to pay the Required Amount. In such event, Parent shall deliver true, correct and complete fully executed copies of any Alternative Debt Financing Commitment or Alternative Debt Financing Agreements (which, in the case of its Affiliates any associated fee letter, may be customarily redacted with respect to (i) agree tofee amounts, pricing and other economic terms, none of which redacted terms would reasonably be expected to adversely affect availability or conditionality, or acceptreduce (below the Required Amount) the aggregate principal amount of, economic terms that are materially less favorable to AGCOthe Alternative Debt Financing), as determined applicable, to the Company, and, thereafter, the term “Debt Financing” as used in this Agreement shall be deemed to include any Alternative Debt Financing (and consequently the reasonable judgment term “Financing” shall include the Equity Financing, any available portion of AGCO, than the economic terms contained in the Commitment Letter then-existing Debt Financing and the Fee Letter (assuming Alternative Debt Financing), and the application of the terms “market flexDebt Financing Commitment” provisions) or (ii) seek any equity investment or any offeringand “Financing Agreement”, placementin each case, sale or other issuance of any equity securities (it being understood and agreed that as used in this Agreement shall be deemed to include any Alternative Debt Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true Commitment and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative FinancingDebt Financing Agreement, respectively.
(de) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCOEffective Time, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries in all cases subject to use their respective reasonable best efforts the limitations set forth in, and prior to providethe termination of, this Agreement, the Company shall, and shall use its commercially reasonable best efforts to cause each of its applicable Subsidiaries and its and their respective Subsidiaries’ RepresentativesRepresentatives to, use its and their respective commercially reasonable efforts to provide Parent, at Parent’s sole cost and expense, with such reasonable and customary cooperation as may be reasonably requested in writing by Parent in each case, to provide assist Parent and Merger Sub in arranging the Debt Financing, including the use of commercially reasonable efforts to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO (provided that the foregoing commercially reasonable efforts standard shall not apply with respect to the Company and that is necessary its applicable Subsidiaries (but shall apply with respect to its and customarily required for financings of the type contemplated by the Commitment Letter in connection their respective Representatives) with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:respect to clause (iv)):
(i) upon reasonable noticeprior written notice and at reasonable times, cause the reasonable participation by appropriate and applicable senior management and Representatives of Trimble, the Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, meetings and presentations with prospective lenders upon reasonable prior written notice (but not more than one primary bank meeting) and customary ratings agency presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreedon a telephonic basis;
(ii) delivery to AGCO of the Required Information provide reasonable and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other customary assistance as may be reasonably requested by AGCO in with the preparation of customary materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required reasonably necessary in connection with the Available Debt Financing (or any replacement thereof permitted hereunder), including the delivery of providing customary authorization and representation letters authorizing the distribution of information relating to the extent contemplated by Company and its Subsidiaries to prospective lenders or customary in investors and containing representations with respect to the Available Financing and a supplement to presence of or alternative version that does not include information that constitutes absence of material non-public information regarding Trimble or relating to the Business Company and similar documents required in connection with arranging its Subsidiaries and the Available Financing accuracy of the information relating to the Company and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliantits Subsidiaries contained therein;
(iii) to furnish Parent reasonably promptly with the extent reasonably requested by AGCO, Company SEC Documents and other historical financial statements of the Company (A) assisting in the preparation of, and executing and delivering, customary certificates or documents“Required Financial Information”); provided, however, that (x) no obligation of with respect to such other historical financial statements, the Company or any of its Subsidiaries under any such document shall only be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required obligated to deliver such certificates or adopt resolutions approving applicable financial statements to the financing documents, agreements extent they may be reasonably obtained from the books and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers records of the Company and its Subsidiaries on (and after solely at the Closing times the Company typically prepares such statements or information) without undue effort or expense, and in no event shall the Required Financial Information be deemed to include or shall the Company otherwise be required to provide (x) pro forma financial statements or pro forma adjustments related to the Debt Financing, projections or other prospective information or (y) any information or assistance relating to (A) the proposed aggregate amount of debt and equity financing, together with assumed interest rates, dividends (if any) and fees and expenses relating to the incurrence of such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, debt or only effective as of, the Closing and equity financing; (B) assisting AGCO with entering into arrangements any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other pro forma adjustments; or (C) any financial information related to replace the guarantees, letter Parent or any of credit and surety bond obligations in effect with respect its Subsidiaries or any adjustments that are not directly related to the Businessacquisition of the Company by Parent;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereofprovide, including obtaining customary lien release letters and related termination filings;
(v) no less than at least four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably extent requested in writing by the Financing Sources Parent or its financing sources at least six eight (6) 8) Business Days prior to the anticipated Closing Date about the Company or Trimble Date, all documentation and its Subsidiaries that the Financing Sources reasonably determine is other information required by bank regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulations, includingincluding the Patriot Act and beneficial ownership regulations (including beneficial ownership certifications under 31 C.F.R. § 1010.230);
(v) provide reasonable and customary assistance with the preparation of, without limitationand execution and delivery at Closing, the PATRIOT ActFinancing Agreements (including schedules thereto) and facilitating the pledging of collateral in connection with the Debt Financing, includingincluding executing and delivering as of, if but not effective before, the Company qualifies as a “legal entity customer” under the Beneficial Ownership RegulationClosing any customary pledge and security documents, currency or interest hedging arrangements or other customary definitive financing documents, a Beneficial Ownership Certification; and
solvency certificate (vi) in the form attached to the Debt Commitment Letter as of the date hereof), as may reasonably requested by Parent to the extent reasonably requested required by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) terms of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standardsDebt Commitment Letter; provided, that neither Trimble nor the effectiveness of any documentation executed by the Company or any of its Subsidiaries shall be subject to the occurrence of the Closing;
(Avi) be required take reasonable corporate actions, subject to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent only effective upon the occurrence of the Closing Date Closing, reasonably necessary to permit the consummation of the Debt Financing in accordance with the Debt Commitment Letter; and
(vii) reasonably cooperate in the replacement or (D) be required to take backstop of any action that will (x) conflict with outstanding letters of credit issued for the account of the Company or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents , providing the Payoff Letters and Lien terminations, and delivering prepayment or redemption notices in a timely manner with respect thereto.
(f) Notwithstanding anything to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions contrary contained in this Section 7.15(d). Trimble hereby consents to Agreement, nothing in this Agreement shall require any such cooperation or efforts from the reasonable use of Acquired Companies, its Affiliates and its and its Subsidiaries’ trademarks and logos their respective Representatives in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputationDebt Finan
Appears in 1 contract
Financing. (a) Subject to the terms Each of Anthem and conditions of this Agreement, AGCO Cigna shall use its reasonable best efforts to obtain take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange the Committed Financing and related transactions described in the Commitment Letter, including using reasonable best efforts to (taking i) negotiate and enter into account any reductions thereof pursuant to Section 7.15(b)(A)) definitive agreements with respect thereto on the terms and conditions set forth in contemplated by the Commitment Letter (including any “flex” provisions in the Fee Letter) or on such with other terms and conditions that are acceptable agreed by Anthem, Cigna and the Financing Parties), (ii) satisfy (or obtain a waiver of) on a timely basis all conditions to AGCO so long as such other terms obtaining the Financing set forth therein, (iii) consummate the Financing at or prior to the Closing and conditions constitute Permitted Financing Terms(iv) with respect to Anthem, enforce its rights under the Commitment Letter and AGCO the definitive agreements relating to the Financing.
(b) Notwithstanding Section 5.14(a), Anthem shall not permit any amendment have the right from time to time to amend, supplement or modification to be made tootherwise modify, or waive any waiver of any provision its rights under, the Commitment Letter Letter, or the Fee Letter (or following entry enter into definitive documents relating other financing arrangements as an alternative to the Committed Financing; provided that Anthem shall not enter into any such amendment, such definitive documents) supplement, modification, waiver or alternative if such amendment, modification supplement, modification, waiver or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) alternative imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, or otherwise expands, amends or modifies any other provision of the Commitment Letter, in a manner that would, in the case of this subclause would (B), reasonably be expected to (xi) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) and adversely impact affect the ability of AGCO Anthem to fund its obligations when due under this Agreement or (ii) materially and adversely affect the ability of Anthem to enforce its rights against under the other parties to terms of the Commitment Letter in any material or the definitive agreements with respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”)thereto; provided, further, that subject to compliance with the other provisions of this Section 7.15, AGCO Anthem may amend the Commitment Letter or such the definitive documents agreements with respect thereto to correct typographical errors, add additional lenders, arrangers arrangers, bookrunners, and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver in a manner that would not materially adversely affect the ability of Anthem to Trimble copies of any such amendment, modification or replacement. For purposes of fund its obligations when due under this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedAgreement.
(bc) AGCO Anthem and Cigna shall, and shall use its reasonable best efforts (taking into account cause their respective Subsidiaries to, refrain from taking, directly or indirectly, any action that would reasonably be expected to result in the anticipated timing failure of any of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included or in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such any definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior agreement related to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing PeriodFinancing.
(cd) AGCO Each of Anthem and Cigna shall give Trimble the other party prompt written notice (xi) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material threatened breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating documents related to the Committed Financing of any provisions which such party becomes aware and (ii) of the Commitment Letter occurrence of an event or definitive agreements relating development that would reasonably be expected to adversely impact the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able ability to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter Letter.
(e) If Anthem or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided Cigna becomes aware that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated contained in the Commitment Letter and Fee Letter, each of Anthem and such portion is reasonably required to effect the Closing, AGCO Cigna shall use its reasonable best efforts to arrange and obtain in replacement thereof thereof, and negotiate and enter into definitive agreements with respect to, alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal sufficient to consummate the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and Mergers as promptly as reasonably practicable following the occurrence of such event. For ; provided, however, that such replacement commitment shall not, without the avoidance prior written consent of doubteach of Anthem and Cigna (which shall not be unreasonably withheld, in no event shall conditioned or delayed), be subject to any additional or modified conditions or other contingencies to the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any funding of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, Financing than the economic terms those contained in the Commitment Letter and that would be reasonably expected to prevent or materially impede, interfere with, hinder or delay the Fee Letter (assuming the application consummation of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative FinancingMergers.
(df) Prior to the Closing, Trimble Each of Anthem and Cigna shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provideto, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representativesrepresentatives to, to on a timely basis, provide to AGCO, at AGCO’s sole expense, all reasonable cooperation reasonably requested by AGCO and other party or the Financing Parties that is reasonably necessary and customarily required for financings of the type contemplated by the Commitment Letter customary to assist in connection with obtaining the Available FinancingFinancing if such requested cooperation does not unreasonably interfere with the ongoing operations of Anthem or Cigna, as applicable. Without limitation of limiting the generality of the foregoing, such cooperation shall in any event include using reasonable best efforts shall include:
with respect to: (i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) participating in a reasonable number of meetings, road shows, presentations, conference calls, due diligence meetings and drafting sessions, sessions and participating in reasonable and customary due diligence, (ii) furnishing the Financing Parties with rating agencies and potential lenders such financial and other pertinent information as may be reasonably requested to consummate the Financing, including all financial statements and financial data of the type required by Regulation S-X and Regulation S-K under the Securities Act and applicable to a registration statement under the Securities Act on Form S-3, including delivery of (A) audited consolidated balance sheets and related audited statements of income, stockholders’ equity and cash flows of Cigna for each of the three fiscal years most recently ended at least 90 days prior to the Closing Date and (B) unaudited consolidated balance sheets and related unaudited statements of income, stockholders’ equity and cash flows of Cigna for each subsequent fiscal quarter ended at least 45 days prior to the Closing Date, (iii) assisting the Financing Parties in the preparation of (I) an offering document for any portion of the Financing and (II) materials for rating agency presentations and providing customary syndication activities authorization letters related thereto, (iv) obtaining customary financing accountants’ comfort letters and consents of accountants from Cigna’s independent public accounting firm for use of their reports in any materials relating to the Financing and in connection with any filings required to be made by Anthem pursuant to the Securities Act (including any registration statement) relating to the Financing and (v) reasonably cooperating with the marketing efforts for any portion of AGCO the Financing. For purposes of clauses (f) and (g) of this Section 5.14 only, “Financing” shall include the Financing Sourcesfinancings expressly contemplated pursuant to the Commitment Letter, including any issuance(s) of Takeout Securities and Term Facilities (as both terms are defined in each casethe Commitment Letter).
(g) Anthem shall indemnify and hold harmless Cigna, its Subsidiaries and their respective representatives from and against any and all losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with the Available Financingarrangement of the Financing and any information used in connection therewith. Nothing in this Section 5.14 shall require (i) cooperation from Cigna or any Cigna Subsidiary to the extent it would unreasonably interfere with the ongoing operation of Cigna and its Subsidiaries, at reasonable times and locations to be mutually agreed;
(ii) delivery Cigna or any Cigna Subsidiary to AGCO commit to any liability or obligation that is not conditioned upon the consummation of the Required Information Mergers and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of (iii) any materials for rating agency presentations, offering documentsand syndication documents (including prospectuses, private placement memoranda, prospectuses, bank information memoranda and lender and investor presentations) and similar marketing documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary Financing to be issued in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation name of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ Cigna or any of its Subsidiaries’ Organizational Documents .
(h) Notwithstanding anything to the extent contrary contained in this Agreement, Anthem expressly acknowledges and agrees that the obligations of Anthem and Merger Sub hereunder are not conditioned in any provision creating such conflict was not created in contemplation manner upon Anthem or Merger Sub obtaining any financing. The failure, for any reason, other than as a result of any material breach of this Agreement by Cigna, of Anthem or Merger Sub to have sufficient cash available on the date that the Closing is required to occur pursuant to Section 1.2 or the failure to pay the aggregate Cash Consideration on the date that the Closing is required to occur pursuant to Section 1.2 shall constitute a Willful Breach of this Agreement by Anthem and Merger Sub.
(i) None of the Available Financing) Financing Parties shall have any liability to Cigna or any Laws Person that is an Affiliate of Cigna prior to giving effect to the Merger relating to or (y) result arising out of this Agreement or the Financing, whether at law or in equity, in contract, in tort or otherwise, and neither Cigna nor any Person that is an Affiliate of Cigna prior to giving effect to the contravention of, Merger shall have any rights or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or claims directly against any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm Financing Parties hereunder or disparage Trimble or any of its Subsidiaries or the reputationthereunder.
Appears in 1 contract
Sources: Merger Agreement (Anthem, Inc.)
Financing. As of the date hereof, United has delivered to Torch true and correct copies of (ai) Subject a fully executed debt commitment letter, dated as of even date herewith (as may be amended or modified in accordance with the terms hereof, the “Debt Commitment Letter”), from the Debt Financing Sources party thereto, reflecting each such person’s commitment to provide to United at the Closing (or, at the option of United, prior to the Closing) the cash amount set forth therein subject to the terms and conditions thereof (the “Debt Financing”), (ii) any fee letters related to the Debt Commitment Letter, (iii) the fully executed Investment Agreement between United and the persons identified therein (together with any persons that become a party thereto after the date of this AgreementAgreement in accordance with the terms thereof, AGCO shall use its reasonable best efforts the “Equity Financing Sources”), reflecting each such person’s commitment to obtain subscribe for shares of Series C Preferred Stock in exchange for the Committed Financing (taking into account any reductions thereof pursuant cash amount set forth therein subject to Section 7.15(b)(A)) on the terms and conditions thereof (the “Equity Financing”), and (iv) any other Contract (or form thereof) between or among United or any of its Subsidiaries, on the one hand, and any Equity Financing Source or any Affiliate thereof, on the other hand, entered into or proposed to be entered into in connection with or relating to the Equity Financing or the Transactions, whether of a financing, commercial or other nature. As of the date hereof, each of the Debt Commitment Letter and the Investment Agreement, in the form so delivered, is in full force and effect and is a legal, valid and binding obligation of United and, to the Knowledge of United, the other parties thereto, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles. As of the date hereof, none of the Debt Commitment Letter and the Investment Agreement has been amended, supplemented or otherwise modified in any respect, no amendment, supplement or modification is contemplated (other than to add or replace lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Debt Commitment Letter), and the financing and subscription commitments thereunder have not been withdrawn, terminated or rescinded in any respect. As of the date hereof, no event has occurred that, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach on the part of United or, to the Knowledge of United, any other parties thereto under any term or condition of the Debt Commitment Letter or the Investment Agreement, and, assuming the satisfaction or waiver of the conditions set forth in Section 8.1 and Section 8.2, United has no reason to believe that it will be unable to satisfy on a timely basis any term or condition precedent to the funding of any portion of the Debt Financing and/or Equity Financing to be satisfied by it set forth in the Debt Commitment Letter and the Investment Agreement, respectively, or that any portion of the Debt Financing or Equity Financing to be made thereunder will otherwise not be available to United on or prior to the Closing Date to consummate the Transactions. Except for the fee letters (including true and correct copies of which have been provided to Torch) and customary engagement letters and fee credit letters with respect to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount (after taking into account the amount of the Equity Financing) or adversely affects the conditionality, enforceability, termination or availability of the Debt Financing), as of the date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter or the Investment Agreement to which United is a party that impose conditions to, affect the availability or enforceability of or modify, amend or expand the conditions to the funding of the Debt Financing or Equity Financing other than as expressly set forth in the Debt Commitment Letter or the Investment Agreement. The Debt Financing and Equity Financing, when funded in accordance with the Debt Commitment Letter and the Investment Agreement, respectively, and after giving effect to any “flex” provisions provision in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter or the Fee Letter related fee letters (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) including with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or and original issue discount) from that contemplated will provide United with funds sufficient to satisfy all of United’s and its Subsidiaries’ (including its Subsidiaries following the Closing) payment obligations under Article I, pay any other amounts required to be paid by United and its Subsidiaries (including its Subsidiaries following the Closing) in connection with the Commitment Letter or such definitive documents consummation of the Transactions and pay all related fees and expenses as they are required to be paid by United and its Subsidiaries (other than in accordance with including its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)Subsidiaries following the Closing), in each case, on or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions prior to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereofset forth herein (such amounts, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financingcollectively, the “Available FinancingRequired Amount”) ). The obligations to make the Debt Financing and thereby reduce Equity Financing available to United pursuant to the terms of the Debt Commitment Letter and the Investment Agreement, respectively, are not subject to any conditions precedent or other contingencies related to the funding of the full amount of the Committed Debt Financing under and Equity Financing, other than as expressly set forth in the Debt Commitment Letter (or definitive financing documents related thereto)and the Investment Agreement, (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter respectively (including the any “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior related to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Debt Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financingrelated fee letters). As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in In no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO receipt or availability of any funds or financing (including the Debt Financing and the Equity Financing) by United or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale other financing or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall transactions be permitted a condition to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries United’s obligations under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputationAgreement.
Appears in 1 contract
Financing. (a) Subject Each of the Equity Investor, Parent and Acquisition Sub shall take or cause to be taken, and shall cause their respective Affiliates and its and their respective Representatives 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 Financing at or prior to the Closing on the terms and subject to the conditions set forth in the Financing Commitments (including any “flex” provisions), including executing and delivering all such documents and instruments as may be reasonably required thereunder and:
(i) complying with and maintaining in full force and effect the Financing and the Financing Commitments (and, once entered into, the Financing Agreements) in accordance with the terms and conditions of this Agreement, AGCO shall use its reasonable best efforts thereof and negotiating and entering into definitive financing agreements with respect to obtain the Committed Debt Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth in the Debt Commitment Letter Letters (including any “flex” provisions in provisions) and containing no (I) conditions to the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, consummation of all or any waiver portion of any provision under, the Debt Financing other than the conditions set forth in Exhibit E to the Bank Debt Commitment Letter or the Fee Letter (or following entry into definitive documents relating Exhibit B to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Margin Loan Commitment Letter or the Fee Letter or such definitive documentsLetter, as applicablethe case may be, reduces in each case, as in effect on the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A))date hereof, or (BII) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner provisions that would, in the case of this subclause (B), could reasonably be expected to (x) prevent prevent, impede, delay or materially delay the Closing or adversely affect the availability of the Committed Financing on the Closing Date taking into account the expected timing any of the Closing Date, taking into account Debt Financing or the expected timing consummation of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against Merger and the other parties to the Commitment Letter in any material respect transactions contemplated by this Agreement (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B)definitive agreements, the “Permitted Financing TermsAgreements”); provided, ) so that subject to compliance with the other provisions of this Section 7.15, AGCO may amend Financing Agreements are in full force and effect no later than the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles toClosing;
(ii) satisfying, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and obtaining the definitions waiver of, as promptly as practicable and references toon a timely basis (and in any event, no later than the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related theretoClosing) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject all conditions to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Debt Financing contemplated by the Debt Commitment Letter on the terms Letters and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto Agreements that are within its control andor their control, subject to satisfaction of all conditions to fundingincluding, to consummate the Committed Financing at without limitation:
(A) on or prior to the Closing Date, as applicabletransferring Tesla Shares to the Margin Loan Borrower and causing the Margin Loan Borrower to credit to collateral accounts pledged to the applicable Debt Financing Sources in respect of the Margin Loan Financing and held through the facilities of DTC, including using its reasonable best efforts in each case, sufficient Tesla Shares, which shall be free from all transfer restrictions and restrictive conditions (other than permitted restrictions contemplated under the Financing Documents in respect of the Margin Loan Financing), to cause the lenders and LTV Ratio (as defined in the other persons committing Margin Loan Commitment Letter) not to fund the Committed Financing on exceed 20% as of the Closing Date Date;
(B) ensuring the “Committed Financing Sources”absence of (1) and any default or event of default (Dor any equivalent term) enforce its rights under the Commitment Letter and any definitive agreements with Financing Agreements in respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.Margin Loan Financing, or (2) any Potential Adjustment Event or Mandatory Prepayment Event (in each case, under and as defined in the Margin Loan Commitment Letter);
(cC) AGCO shall give Trimble prompt notice (x) maintaining the Margin Loan Borrower as a wholly owned subsidiary of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay ofParent and ▇▇▇▇ ▇▇▇▇, or in any way limit, the availability of the Committed Financing, and (y) causing the organizational documents of the receipt of Margin Loan Borrower not to contain, and causing the Margin Loan Borrower not to enter into any written notice or other communicationContract, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon (1) impede or prevent the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO Margin Loan Borrower or any of its Affiliates to (i) agree to, from enforcing or accept, economic terms that are materially less favorable to AGCO, as determined the Margin Loan Borrower’s rights in respect of the reasonable judgment of AGCO, than Debt Financing Sources under the economic terms contained in the Margin Loan Commitment Letter and or any Financing Agreement in respect thereof or (2) impede or prevent the Fee Letter (assuming Margin Loan Borrower or any of its Affiliates from applying the application proceeds of the “market flex” provisions) or (ii) seek loans to pay any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.Funding Obligations; and
(dD) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause causing ▇▇▇▇ ▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, (1) fully and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, unconditionally guarantee all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings obligations of the type contemplated by Margin Loan Borrower under the Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Margin Loan Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Margin Loan Financing and for such Required Information (2) at all times through and including the Closing Date to remain Compliantown (beneficially and of record), directly or indirectly, all of the outstanding equity interests of, and Control, the Margin Loan Borrower;
(iii) accepting (and complying with) to the fullest extent reasonably requested all “flex” provisions contemplated by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the BusinessDebt Commitment Letters;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and causing the Financing Sources all documentation and information to fund the Financing no later than the Closing (including by enforcing its rights under the Debt Commitment Letters and/or Financing Agreements, as is applicable).
(b) None of the Equity Investor, Parent, Acquisition Sub or the Margin Loan Borrower or any of their respective Affiliates shall agree to or permit any amendment, supplement, modification or replacement of, or grant any waiver of, any condition, remedy or other provision under any Financing Commitment or Financing Agreement, or permit any Financing Agreement to contain any provision, without the prior written consent of the Company, if such amendment, supplement, modification, replacement, waiver or provision would or would reasonably requested in writing be expected to (i) reduce (or would reasonably be expected to have the effect of reducing) the aggregate amount of the Financing (or the cash proceeds available therefrom) from that contemplated by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies Commitments delivered as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are includeddate hereof, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above)impose new or additional conditions or contingencies to the Financing or otherwise expand, (C) incur amend or modify any of the existing conditions to the receipt of the Financing, or otherwise add, expand, amend or modify any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or remedies under, the Financing Commitments as in effect on the date hereof, in a manner that would reasonably be expected to result in a violation delay, impede or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to prevent the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputationconsummation
Appears in 1 contract
Sources: Merger Agreement (Twitter, Inc.)
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO Purchaser shall use its commercially reasonable best efforts to obtain the Committed Debt Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) as promptly as practicable on the terms and conditions set forth described in the Commitment Letter Letter, including using commercially reasonable efforts to seek to enforce (including any “flex” provisions in the Fee Letterthrough litigation) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to under the Commitment Letter in any material respect (the terms event of any such amendment, modification or waiver not in violation of these clauses (A) and (B), a breach thereof by the “Permitted Debt Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions ofSources thereunder, and references using commercially reasonable efforts to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter : (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (Ai) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consentLetter, (xii) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Debt Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter (including so that such agreements are in effect as promptly as practicable but in any event no later than the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms)Closing, (Ciii) satisfy on a timely basis all conditions applicable to funding Purchaser in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate (including by consummating the Committed Debt Financing at or prior pursuant to the terms of the Commitment Letter), (iv) at the request of Seller and if a decree of specific performance by a court of competent jurisdiction is granted ordering the consummation of the Closing Datepursuant to Section 9.14 of this Agreement, as applicablefully enforce the obligations of the lenders (and the rights of Purchaser) under the Commitment Letter, including using its reasonable best efforts the filing of one or more lawsuits against the committing parties to fully enforce such lender’s obligations (and the rights of Purchaser) thereunder, and (v) cause the lenders and the any other persons committing to fund providing the Committed Debt Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect theretoto fund the Debt Financing at Closing. Trimble acknowledges and agrees that AGCO shall not be required to consummate Without limiting the Available Financing before the final day generality of the Marketing Period.
(c) AGCO foregoing, Purchaser shall give Trimble Seller prompt notice of (xi) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed FinancingPurchaser become aware, (yii) of the receipt of any written notice or other communication, in each case written communication from any Committed Debt Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter Letter, (iii) any material dispute or definitive agreements relating disagreement between or among any parties to the Committed Financing of any provisions of the Commitment Letter or any definitive agreements relating documents related to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Debt Financing and (ziv) if at any time for any reason AGCO Purchaser believes in good faith that it will not be able to obtain all or any portion of the Committed Debt Financing on the terms and conditionsterms, in the manner or from the Committed Financing Sources sources contemplated by the Commitment Letter or the definitive agreements documents relating to the Committed Financingthereto. As soon as reasonably practicable after practicable, but in any event within five (5) days of the date Trimble Seller delivers to AGCO Purchaser a written request, AGCO Purchaser shall provide any information reasonably requested by Trimble Seller relating to any circumstance referred the circumstances in the foregoing sentence.
(b) Purchaser shall not release or consent to in clause (x), (y) or (z) the termination of the immediately preceding sentence; obligations of the lenders under the Commitment Letter, except for assignments and replacements of an individual lender under the terms of or in connection with the syndication of the Debt Financing or as otherwise expressly contemplated by the Commitment Letter, provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client such assignments or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that replacements would not waive such privilegeprevent, delay or impair the availability of the Debt Financing under the Commitment Letter or the consummation of the transactions contemplated by this Agreement and the other Transaction Documents. Upon the occurrence Purchaser shall promptly deliver to Seller copies of any circumstance referred such amendment, modification or replacement. Subject to the foregoing limitations, in clause (x), (y) or (z) of the second preceding sentence resulting in event that any portion of the Committed Debt Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on in the terms and conditions (including manner or from the flex provisions) sources contemplated in the Commitment Letter and Fee Letter, Purchaser shall (i) promptly notify Seller of such unavailability and such portion is reasonably required to effect the Closing, AGCO shall reasons therefor and (ii) use its commercially reasonable best efforts to arrange and obtain in replacement thereof obtain, and to negotiate and enter into definitive agreements with respect to, alternative financing (“Alternative Financing”) from alternative sources financial institutions in an amount at least equal sufficient to consummate the unavailable portion thereof, as transactions contemplated by this Agreement and the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and other Transaction Documents upon conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, Purchaser than the terms and conditions set forth those in the Commitment Letter and the Fee Letter (including the as to economic terms, flex provisions therein) and funding conditions), as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, event (and in any event no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, later than the economic terms contained in the Commitment Letter Closing). Purchaser shall furnish Seller with complete, correct and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance executed copies of any equity securities (it being understood and agreed that any Alternative definitive agreements with respect to the Debt Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject alternative financing agreement) promptly upon their execution and shall keep Seller reasonably informed of the status of its efforts to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative arrange and consummate the Debt Financing.
(dc) Prior Purchaser acknowledges and agrees that neither the obtaining of the Debt Financing or any alternative financing is a condition to the Closing, Trimble shall use and without limiting the terms set forth in Section 7.2, reaffirms its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary obligation to consummate the Available transactions contemplated by this Agreement irrespective and independently of the availability of the Debt Financing and for such Required Information to remain Compliant;
(iii) or any alternative financing, subject to the extent reasonably requested by AGCO, (A) assisting applicable conditions set forth in the preparation of, Section 6.1 and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputation6.2.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (International Shipholding Corp)
Financing. (a) Subject to the terms Each of Parent and conditions of this Agreement, AGCO Merger Sub shall use its reasonable best efforts to obtain the Committed Debt Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth described in the Commitment Letter Financing Facilities (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing TermsDebt Commitment Letters), and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) Financing Facilities if such amendment, modification or waiver (Ai) with respect to reduces (or would have the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces effect of reducing) the aggregate amount of the Committed cash proceeds available from the Debt Financing (including by increasing the amount of fees to be paid or original issue discount unless (A) the Committed Financing Debt Financings is increased by a corresponding amount or and (B) after giving effect to any of the Committed Financing is otherwise made available transactions referred to fund such fees or original issue discountin clause (A) from that contemplated above, the representation and warranty set forth in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), 3.02(f) shall be true) or (Bii) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Financing Facilities in a manner that would, in the case of this subclause (B), would reasonably be expected to (xA) materially delay or prevent or materially delay make less likely the funding of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the date of the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (yB) materially and adversely impact the ability of AGCO Parent or Merger Sub to enforce its rights against the other parties to the Commitment Letter in any material respect Financing Facilities (the terms of any such amendmentprovided that, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.155.04, AGCO Parent and Merger Sub may amend the Debt Commitment Letter or such definitive documents Letters to correct typographical errors, add additional lenders, arrangers arrangers, bookrunners, agents and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party theretoother similar entities). AGCO Parent shall promptly deliver to Trimble the Company copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO Each of Parent and Merger Sub shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (Ai) maintain in full force and effect the Financing Facilities (including the Debt Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related theretoLetters), (yii) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter Facilities on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) Financing Facilities (or on such other terms that are acceptable no less favorable to AGCO so long as such other Parent or Merger Sub (in the reasonable judgment of Parent) than the terms and conditions constitute Permitted in the Financing TermsFacilities), (Ciii) to satisfy on a timely basis all conditions applicable to Parent and Merger Sub to funding in the Commitment Letter and such definitive agreements with respect thereto Financing Facilities that are within its control andtheir control, subject to satisfaction of (iv) in the event that all conditions to fundingin the Financing Facilities and this Agreement have been satisfied, to consummate the Committed Debt Financing at or prior to the Closing Dateand (v) to comply with its obligations under the Financing Facilities. In the event that all conditions set forth in Section 7.01 and Section 7.02 have been satisfied or waived or, upon funding shall be satisfied or waived (other than any such conditions which by their nature can only be satisfied at Closing, which shall be required to be so satisfied or (to the extent permitted by Applicable Law) waived at such time), Parent and Merger Sub shall cause the Financing Sources to fund on the Closing Date the Debt Financing, to the extent the proceeds thereof are required to consummate the Merger and the other transactions contemplated hereby, and shall enforce their rights under the DNB Credit Facility or Debt Letters, as applicable, applicable (including using its reasonable best efforts in the event of any breach or purported breach thereof by taking enforcement action to cause the such lenders and the other persons committing Financing Sources to fund such Debt Financing). Parent and Merger Sub shall not take, directly or indirectly, any action that would reasonably be expected to result in a failure of any of the Committed Financing on conditions contained in the Closing Date (DNB Credit Facility or the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and Debt Letters or in any definitive agreements with respect theretoagreement related to the Debt Financing. Trimble acknowledges Parent and agrees that AGCO Merger Sub shall not be required object to consummate the Available utilization of any “market flex” provisions by any Financing before Source. Parent shall keep the final day Company reasonably informed on a current basis and in reasonable detail of the Marketing Period.
(c) AGCO status of its efforts to arrange the Debt Financing and provide the Company copies of material definitive arrangements for the Debt Financing. Without limiting the generality of the foregoing, Parent and Merger Sub shall give Trimble the Company prompt notice (xA) of any breach or default by any party to any of the Commitment Letter or definitive agreements relating to the Committed Financing Facilities of which AGCO has Knowledge if such breach Parent or default would result in a material delay of, or in any way limit, the availability of the Committed FinancingMerger Sub becomes aware, (yB) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any (1) actual or potential material breach, material default, termination or repudiation by any party to any of the Commitment Letter or definitive agreements relating to the Committed Financing Facilities of any provisions of the Commitment Letter Financing Facilities or definitive agreements relating (2) material dispute or disagreement between or among any parties to any of the Financing Facilities with respect to the Committed obligation to fund the Debt Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability amount of the Committed Debt Financing to be funded at Closing, and (zC) if at any time for any reason AGCO Parent or Merger Sub believes in good faith that it will not be able to obtain all or any portion of the Committed Debt Financing in an amount sufficient to consummate the Merger on substantially the same terms and conditions, in the manner or from the Committed Financing Sources sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilegeFinancing Facilities. Upon the occurrence of any circumstance referred to in clause (xA), (yB) or (zC) of the second immediately preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Debt Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letterunavailable, and such portion is reasonably required necessary to effect fund an amount sufficient to consummate the ClosingMerger upon the terms contemplated by this Agreement and pay all related fees and expenses of Parent, AGCO Merger Sub and their respective Representatives pursuant to this Agreement, Parent and Merger Sub shall use its their reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from the same or alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with on terms and conditions not materially that are no less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCOParent) to Parent and Merger Sub, taken as a whole, than the terms and conditions those set forth in the Commitment Letter and Financing Facilities, in an amount when added to the Fee Letter (including portion of the flex provisions therein) and Debt Financing being replaced that is still available, to consummate the transactions contemplated hereby as promptly as reasonably practicable following the occurrence of such event. For Upon obtaining any commitment for any such Substitute Financing, such financing shall be deemed to be a part of the avoidance “Debt Financing” and any commitment letter for such Alternative Financing shall be deemed a “Debt Commitment Letter” for all purposes of doubtthis Agreement. Notwithstanding anything herein to the contrary, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 of Parent or Merger Sub be deemed or construed so as to require AGCO Parent or any of its Affiliates to Merger Sub to, and neither Parent nor Merger Sub shall be required to, (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined pay any fees in excess of those contemplated by the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) Financing Facilities or (ii) seek agree to any equity investment term that is outside of, or less favorable than, any applicable economic provision of the Financing Facilities or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing)related fee letter. AGCO Parent shall deliver to Trimble true the Company complete and complete correct copies of all written agreements, arrangements or contracts agreements (including any side letters or (subject to customary redactions) redacted fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative portion of the Debt Financing.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputation
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO Purchaser shall use its reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth in the Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date after taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact to obtain the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Equity Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions ofDebt Financing (or, and references to, in the Financing, event any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (portion or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing all of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereofDebt Financing becomes unavailable, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other alternative debt financing arrangements (any such debt financing, a “Permanent Financing” andin an amount sufficient, together with the Committed remaining Debt Financing, if any, and the “Available Equity Financing”, to fund the Required Amount from the same or (to the extent permitted by applicable Law) other banks or similar financial institutions, on terms and thereby reduce conditions (including market flex provisions) not less favorable to Purchaser than those terms contained in the amount of the Committed Financing under the Debt Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace such portion from such sources other than any source providing the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Debt Financing contemplated by the Debt Commitment Letter on as of the terms and conditions contained in the Commitment Letter (including date hereof, the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing TermsAlternate Financing”)), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior to by the Closing Date, as applicable, Date including using its reasonable best efforts to cause the lenders to: (i) negotiate and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any execute definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, subject only to the conditions contained in the manner Commitment Letters (or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating on other terms that, with respect to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers conditionality, are not less favorable to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other Purchaser than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the market flex provisions) contemplated set forth in the Debt Commitment Letter so long as such other terms would not (and would not reasonably be expected to) have any result, event or consequence described in any of clauses (i) or (ii) of Section 5.16(c)), which, with respect to any bridge facility documentation, shall not be required until reasonably necessary in connection with the funding of the Debt financing; (ii) after taking into account the timing of the Marketing Period, satisfy (or, if deemed advisable by Purchaser, obtain a waiver of) on a timely basis all conditions applicable to Purchaser in the Commitment Letter Letters and Fee Letter, the definitive agreements for the Debt Financing and such portion is reasonably required to effect the Closing, AGCO shall use Equity Financing that are within its reasonable best efforts to arrange and obtain in replacement thereof alternative financing control;
(“Alternative Financing”iii) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (after taking into account any reductions thereof pursuant the Marketing Period, consummate the Debt Financing and Equity Financing on the terms (including the market flex provisions) and subject only to Section 7.15(b)(A))the conditions contained in the Commitment Letters (or on other terms that, with terms and conditions respect to conditionality, are not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, Purchaser than the terms and conditions (including the market flex provisions) set forth in the Debt Commitment Letter so long as such other terms would not (and the Fee Letter (including the flex provisions thereinwould not reasonably be expected to) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubthave any result, event or consequence described in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to clauses (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputation
Appears in 1 contract
Sources: Purchase Agreement
Financing. (ai) Subject to the terms The Purchaser shall, and conditions of this Agreementshall cause its affiliates to, AGCO shall use its commercially reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pursuant take, or cause to Section 7.15(b)(A)) on the terms and conditions set forth in the Commitment Letter (including any “flex” provisions in the Fee Letter) be taken, all appropriate action, do, or on such other terms and conditions that are acceptable cause to AGCO so long as such other terms and conditions constitute Permitted Financing Termsbe done, all things reasonably necessary, proper or advisable under applicable Laws, and AGCO shall not permit any amendment to execute and deliver, or modification cause to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financingexecuted and delivered, such definitive documents) if such amendmentinstruments and documents as may be reasonably required, modification or waiver (A) with respect to arrange and consummate the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior to the Closing Date, as applicableon the terms and subject only to the conditions contained in the Financing Commitments, including using its commercially reasonable best efforts to cause the lenders conditions in the Financing Commitments that are within the Purchaser’s control to be satisfied and to cause the other persons committing financial institutions providing the Debt Financing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing PeriodDebt Financing.
(cii) AGCO The Purchaser shall give Trimble prompt notice (x) not agree to or permit any material amendment, supplement or other modification of, or waive any of its rights under, any breach Financing Commitments or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge without the Seller’s prior written consent, not to be unreasonably withheld, except that the Purchaser may amend, supplement or otherwise modify the Debt Financing Commitments if such breach amendment, supplement or default other modification would result in a material not be reasonably likely to materially impair or delay of, or in any way limit, the availability funding of the Committed Financing, (y) of Debt Financing or the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities Closing (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreementsthat, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings requirements of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in this clause (ii), such amendment, supplement or other modification (1) above, does not contain additional or modified conditions or other contingencies to the funding of the Debt Financing relative to those contained in Debt Financing Commitments and (y2) is otherwise not reasonably likely to impair or delay the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers funding of the Company and its Subsidiaries on and after Debt Financing or the Closing (it being understood than, subject to the requirements of this clause (ii), such amendment, supplement or other modification of the Debt Financing Commitments may provide for the assignment of a portion of the Debt Financing Commitment to additional agents or arrangers and grant such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect persons approval rights with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required certain matters as are customarily granted to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company additional agents or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) abovearrangers), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputation.
Appears in 1 contract
Sources: Purchase Agreement (Olin Corp)
Financing. (a) Subject Each of Parent and Merger Sub shall use, and shall cause their respective Affiliates to the terms and conditions of this Agreementuse, AGCO shall use its reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things reasonably necessary, proper or advisable (as reasonably determined by Parent and Merger Sub) to arrange, obtain and consummate the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth in (including, to the Commitment Letter (including extent required, the full exercise of any “flex” provisions contained in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted described in the Financing TermsCommitment Letters, and AGCO shall not permit any amendment amendment, supplement or modification to be made to, or any waiver of any provision under, the Financing Commitment Letter Letters or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, supplement, modification or waiver waiver, (A) with respect to the Financing Commitment Letter Letters or the Fee Letter or such definitive documents, as applicableLetter, reduces (or could reasonably be expected to have the effect of reducing) the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless (x) the Committed Debt Financing or the Equity Financing is increased by a corresponding amount or the Committed Debt Financing is otherwise made available at Closing to fund such fees or original issue discountdiscount and (y) from that contemplated after giving effect to such reduction and any of the transactions referred to in clause (x) above, the Commitment Letter or such definitive documents (other than representation and warranty set forth in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)5.09 shall be true and correct), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, or imposes new or additional conditions or otherwise expands, amends or modifies any other provision of the Financing Commitment Letters or the Fee Letter, in each case of clauses (A) and (B), in a manner that would, in the case of this subclause would (B), x) reasonably be expected to (x) prevent or materially delay make less likely the Closing or the availability funding of the Committed Financing in an amount necessary to fund the Required Amounts on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO Parent, Merger Sub or the Company, as applicable, to enforce its rights against the other parties to the Financing Commitment Letter in any material Letters or the definitive agreements with respect thereto (the terms of any such amendmentprovided that, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.156.17(a), AGCO Parent and Merger Sub may amend the Debt Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers arrangers, bookrunners and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party theretoagents). AGCO Parent shall promptly deliver to Trimble the Company copies of any amendment, supplement, waiver, consent, modification or replacement in respect of the Debt Commitment Letter (other than an amendment to add additional lenders, arrangers, bookrunners and agents) and the Fee Letter. Parent and Merger Sub shall not agree to the withdrawal, termination, repudiation, reduction or rescission of any commitment in respect of the Debt Financing, and shall not release or consent to the termination of the obligations of the financing sources under the Debt Commitment Letter, in each case, without the prior written consent of the Company, to the extent such withdrawal, termination, repudiation, reduction or rescission is in an amount such that the net proceeds of the Financing would not be in an amount sufficient to fund the Required Amounts at Closing or the Parent would not be able to make the representation set forth in Section 5.08 hereof as of the date of such withdrawal, termination, repudiation, reduction or rescission after giving effect thereto. Parent shall promptly deliver to the Company copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions ofAgreement, and references to, the Financing, any Committed Financing Source, any Financing Source, (i) references to “Committed Financing” shall include the financing contemplated by the Financing Commitment Letter (or definitive financing documents related thereto) Letters as permitted by this Section 7.15(a) to be amended, modified modified, supplemented or replaced and by this Section 6.17(a), (ii) references to “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as permitted to be amended, modified, supplemented or replaced by this Section 6.17(a) and (iii) references to “Debt Commitment Letter” shall include such document documents as permitted by this Section 7.15(a) to be amended, modified modified, supplemented or replacedreplaced by this Section 6.17(a).
(b) AGCO shall Each of Parent and Merger Sub shall, taking into account the Marketing Period, use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable (as reasonably determined by Parent and Merger Sub) to arrange and obtain the Financing on the terms (including the market “flex” provisions contained in the Fee Letter) and subject only to the conditions set forth in the Financing Commitment Letters, including using reasonable best efforts (taking into account the anticipated timing of Marketing Period to the Closing Date and the Marketing Periodextent reasonably applicable) to (A) to maintain in effect the Financing Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required AmountLetters, (B) taking into account the expected timing of the Marketing Period, to promptly negotiate and enter into definitive agreements with respect to the Committed Debt Financing contemplated by the Commitment Letter on the terms and conditions (including, as necessary, agreeing to any requested changes to the commitments thereunder in accordance with any “flex” provisions) contained in the Debt Commitment Letter (including the “flex” provisions included in and the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), ; (C) to promptly prepare the necessary offering circulars, private placement memoranda, or other offering documents, rating agency materials and other marketing materials with respect to the Debt Financing and to commence the marketing and/or syndication activities contemplated by the Debt Commitment Letter as promptly as practicable following the date of this Agreement; (D) to promptly satisfy on a timely basis all conditions to funding in the Debt Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, and in the Equity Commitment Letter and to consummate the Committed Financing at or prior to the Closing Dateand (E) to promptly, as applicable, diligently and fully enforce its rights under the Financing Commitment Letters including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its their rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required Debt Financing to the extent necessary to consummate the Available transactions contemplated by this Agreement and (F) to comply with its obligations under the Financing before Commitment Letters and the final day Fee Letter. Promptly upon written request, Parent shall inform the Company in reasonable detail of the Marketing Period.
(c) AGCO status of its efforts to arrange and consummate the Debt Financing and any material developments in respect thereof. Parent shall provide the Company promptly upon written request with such information regarding the Debt Financing and any syndication efforts as shall be reasonably necessary to allow the Company to monitor the progress of such financing activities. Without limiting the generality of the foregoing, Parent and Merger Sub shall give Trimble the Company prompt notice of (x) of any actual breach or default by any party to any of the Financing Commitment Letter Letters or definitive agreements relating related to the Committed Financing of which AGCO has Knowledge if such breach Parent or default would result in a material delay of, or in any way limit, the availability of the Committed FinancingMerger Sub becomes aware, (y) of the receipt of (A) any written notice or (B) other communicationcommunication in writing, in each case from any Committed Financing Source source with respect to any actual or potential material breach, material default, termination or repudiation by any party to any of the Financing Commitment Letter Letters or definitive agreements relating related to the Committed Financing of any provisions of the Financing Commitment Letter Letters or definitive agreements relating related to the Committed Financing if such breachFinancing, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO Parent or Merger Sub believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources sources contemplated by any of the Financing Commitment Letter Letters or definitive agreements relating related to the Committed Financing. As soon as reasonably practicable after practicable, but in any event within two Business Days of the date Trimble the Company delivers to AGCO Parent or Merger Sub a written request, AGCO Parent and Merger Sub shall provide any information reasonably requested by Trimble the Company relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client sentence or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilegethe status of the Debt Financing. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Debt Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letterunavailable, and such portion is reasonably required to effect pay all amounts required to be paid in connection with the ClosingMerger and the transactions contemplated by this Agreement (including, AGCO without limitation, to fund the Aggregate Merger Consideration, repay or refinance the debt of the Company and its Subsidiaries contemplated by this Agreement or the Debt Commitment Letter, and all other fees, expenses and other amounts contemplated to be paid by Parent, Merger Sub or the Surviving Corporation pursuant to this Agreement and the Financings), Parent and Merger Sub shall use its their reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount sufficient to consummate the Merger, the Financing and the transactions contemplated by this Agreement and the Financing Commitment Letters (including, without limitation, payment of the Required Amounts at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), Closing) with terms and conditions not materially less favorable more onerous to AGCO (or its Subsidiaries), as determined comply with in the reasonable judgment of AGCO, any material respect than the terms and conditions set forth in the Debt Commitment Letter and as of the Fee Letter (including the flex provisions therein) and date hereof as promptly as reasonably practicable following the occurrence of such event. For Parent and Merger Sub acknowledge and agree that the avoidance obtaining of doubtthe Financing, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates alternative financing, is not a condition to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative FinancingClosing.
(dc) Prior to the ClosingClosing Date, Trimble the Company shall use, and shall cause each of its Subsidiaries to use, and shall use reasonable best efforts to have each of its and its Subsidiaries’ respective directors, officers and advisors to use, in each case, their respective reasonable best efforts to provide to AGCOParent and Merger Sub, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, in each case at AGCOParent’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter customary in connection with the Available Financing. Without limitation arrangement of the generality Debt Financing (solely for the purposes of this Section 6.17, the term “Debt Financing” shall be deemed to include customary Rule 144A-for-life high-yield non-convertible debt securities offering to be issued or incurred in lieu of all or a portion of any bridge facility contemplated by the Debt Commitment Letter or pursuant to any “market flex” or “securities demand” provisions of the foregoingFee Letter or any other document associated with the Debt Commitment Letter) (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company or its Subsidiaries), such which reasonable best efforts shall include:
include (i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
, causing the management teams of the Company and its Subsidiaries with appropriate seniority and expertise and external auditors to participate in a reasonable number of meetings, drafting sessions, presentations, road shows, and rating agency and due diligence sessions, (ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in assisting with the preparation of materials for rating agency presentations, (A) offering documents, private placement memoranda, prospectuses, bank information memoranda memoranda, prospectuses and similar documents required reasonably necessary in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Debt Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and (B) materials for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCOrating agency presentations, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that any offering documents, private placement memoranda, bank information memoranda, prospectuses and similar documents or rating agency presentations shall not contain disclosure reflecting the Parent as the obligor(s) other than as set forth in the customary authorization letters or representation letters as contemplated by clause (xiii) no obligation below, (iii) executing customary authorization letters or management representation letters, as applicable, (iv) furnishing Parent reasonably promptly with the Required Information as and when it becomes available, (v) assisting with the preparation of any pledge and security documents, guarantees, other definitive financing documents, or other related certificates or documents as may be reasonably requested by Parent or Merger Sub (including a certificate of the chief financial officer of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than with respect to solvency matters in the case form set forth as an annex to the Debt Commitment Letter) and otherwise facilitating the pledging of collateral to the authorization and representation letters referred to in clause extent required at Closing by the Debt Commitment Letter (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates including cooperation in connection with the Available Financing unless AGCO shall have confirmed that pay-off at Closing of existing Indebtedness to the extent expressly contemplated by this Agreement and the release, following such directorsrepayment, officers of related Liens and managers are to remain termination, following such repayment, of security interests (including delivering prepayment or termination notices as directorsrequired), officers and managers of (vi) assisting Parent or Merger Sub in obtaining from the Company and and/or its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective Subsidiaries’ auditors comfort letters (including as of, the Closing and (Bto negative assurances) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble the Debt Financing and its Subsidiaries and required to be released pursuant (vii) to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) extent requested at least ten Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources providing, at least six (6) three Business Days prior to the Closing Date about Date, all documentation with respect to the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsApplicable Laws, including the USA PATRIOT Act, to the extent requested in writing at least ten Business Days prior to the Closing Date; provided, however, that the Company shall not be required to provide, or cause its Subsidiaries to provide, cooperation under this Section 6.17(c) or (g) below that: (A) unreasonably interferes with the ongoing business of the Company or its Subsidiaries; (B) causes any covenant, representation or warranty in this Agreement to be breached or otherwise causes the breach of this Agreement or any Contract to which the any of the Company or its Subsidiaries is a party, in each case, in a manner that would cause any closing condition set forth in Section 7.02 to fail to be satisfied; (C) requires the Company or its Subsidiaries to incur any liability (including, without limitation, any commitment fees and expense reimbursement) in connection with the PATRIOT ActDebt Financing (other than the authorization letters and management representation letters referenced above) prior to, includingor that are not conditioned upon, if the Closing; (D) requires the Company qualifies as or its Subsidiaries or their respective directors, officers, managers or employees (other than execution and delivery into escrow by those officers that will act in a “legal entity customer” under similar capacity after the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(viClosing) to the extent reasonably requested by AGCOexecute, directing the auditors deliver or enter into, or perform any agreement, document, certificate or instrument with respect to the Business to provide customary comfort letters Debt Financing (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO other than with respect to financial the authorization letters and management representation letters referenced above and the redemption notice referred to below) or adopt resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing is obtained; (E) requires the Company or its Subsidiaries to give any legal opinion or other opinion of counsel; (F) requires the Company or its Subsidiaries to provide any information (including the historical Business that is prohibited or restricted by Applicable Law or applicable confidentiality undertaking or that constitutes privileged information included in the pro forma financial information) of the Business included in any offering documents relating or attorney-client work product, to the Committed Financing extent the Company and its Subsidiaries uses reasonable best efforts to provide such information in a manner that consists of Rule 144A marketed debt securities in which does not breach such undertaking, obligation or privilege; (G) requires the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor Company or any of its Subsidiaries shall (A) be required to pay prepare or deliver any commitment financial statements or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until financial information other than the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date Required Information; or (DH) be required requires the Company or its Subsidiaries to take any action that is prohibited or restricted by, or will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ violate, its organizational documents or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any agreement or Contract to which Trimble the Company or any of its Subsidiaries is a party (except to the extent not entered into such action is conditioned upon and subject to, the Closing). In no event shall the Company be in contemplation breach of this Agreement because of the provisions in this Section 7.15(d). Trimble hereby consents failure to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner deliver any historical financials that is not intended currently readily available to nor reasonably likely the Company and its Subsidiaries on the date hereof or is not otherwise prepared in the ordinary course of business of the Company and its Subsidiaries at the time requested by Parent. In no event shall the Company or its Subsidiaries be required to harm pay any commitment or disparage Trimble other fee or give an indemnity or incur any liability (including due to any act or omission by the Company, its Subsidiaries or any of its Subsidiaries or the reputationtheir resp
Appears in 1 contract
Financing. The Merger Agreement provides that Pinnacle will not agree (anor permit its a wholly owned subsidiary acting as the borrower under the Financing (the “Borrower”) Subject to agree) to or permit any amendment, supplement or other modification of, or waive any of its rights under, the Financing Letters, in each case, without Boulder’s prior written consent (which consent will not be unreasonably withheld or delayed), if such amendment, supplement, modification or waiver would, or could reasonably be expected to, (i) reduce the aggregate amount of the Financing, including by changing the amount of fees or original issue discount payable pursuant to the terms Financing Letters (unless Pinnacle’s and the Purchaser’s representations in the Merger Agreement regarding the Financing remain true and correct after giving effect to such reduction), (ii) impose new or additional conditions to the Financing, or otherwise expand, amend or modify any of this the conditions to the Financing in a manner that would be more onerous than those conditions to funding contained in the Commitment Letter on the date of the Merger Agreement, AGCO shall (iii) adversely impact the ability of Pinnacle, the Borrower or the Purchaser, as applicable, to enforce its rights against the other parties to the Financing Letters or the definitive agreements with respect thereto or (iv) prevent, impede or delay the consummation of the Financing or the consummation of the Transactions; provided, for the avoidance of doubt, that ▇▇▇▇▇▇▇▇ and the Borrower will be permitted, without the prior consent of Boulder, to amend the Financing Letters to add lenders, lead arrangers, bookrunners and syndication agents or similar entities. In addition to the foregoing, Pinnacle will not (nor will it permit the Borrower to) release or consent to the termination of the Commitment Letter or of any lender under the Financing (each, a “Lender”), except for replacements of the Commitment Letter with alternative financing commitments pursuant to the following paragraph. As used in the Merger Agreement, “Commitment Letter” means the commitment letter among the Borrower, ▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and Bank of America, N.A., together with all exhibits, schedules, annexes and amendments thereto, “Fee Letter” means the fee letter reference in the Commitment Letter, “Financing Letters” means the Fee Letter and the Commitment Letter, collectively, and the “Financing” means provision of funds as set forth in the Financing Letters. The Merger Agreement further provides that Pinnacle will (and will cause the Borrower to) use its reasonable best efforts to arrange and obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) and as promptly as reasonably practicable on the terms and conditions set forth in the Commitment Letter (Letter, including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use using its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (Ai) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (xii) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together comply with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing its obligations under the Commitment Letter (or definitive financing documents related thereto)Letter, (yiii) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale as promptly as practicable, negotiate, execute and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into deliver definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contemplated by the Commitment Letter, (iv) satisfy on a timely basis all conditions to funding that are applicable to Pinnacle or the Borrower in the Commitment Letter and the definitive agreements with respect to the Financing contemplated by the Commitment Letter (and not take any action that would reasonably be expected to prevent or materially impair the consummation of the Financing contemplated by the Commitment Letter), (v) enforce its rights pursuant to the Commitment Letter, (vi) consummate the Financing at Table of Contents or prior to the Closing, including by causing the Lenders to fund the Financing at the Closing, and (vii) take, or cause to be taken, all actions, and do, or cause to be done, all things necessary, proper or advisable in connection with the Financing. In furtherance and not in limitation of the foregoing, in the event that any portion of the Financing becomes unavailable on the terms and conditions set forth in the Commitment Letter or it becomes reasonably likely that it would become so unavailable, Pinnacle will (or will cause the Borrower to), as promptly as practicable following the occurrence of such event, use its reasonable best efforts to (i) obtain alternative financing from alternative sources in an amount at least equal to the Financing or such unavailable portion thereof, as the case may be and that does not contain any condition to funding that would be more onerous than those contained in the Commitment Letter (including on the “flex” provisions included in the Fee Letter) (date hereof or on such other any terms that are acceptable would reasonably be expected to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in delay or impede the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction consummation of all conditions to funding, to consummate the Committed Financing at or prior to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on debt financing thereunder beyond the Closing Date (the “Committed Financing SourcesAlternate Financing”) ), and (Dii) enforce obtain one or more new financing commitment letters with respect to such Alternate Financing (each, a “New Commitment Letter”), in each case which New Commitment Letter(s) will replace the existing Commitment Letter in whole or in part. Pinnacle will promptly provide Boulder with a correct and complete copy of any New Commitment Letter, together with any related exhibits, schedules, supplements and term sheets, and a correct and complete copy of any fee letter in connection therewith (it being understood that such letter will be redacted in a customary manner). Pinnacle will (i) keep Boulder reasonably informed on a reasonably current basis of the status of its rights under efforts to arrange the Financing or any applicable Alternate Financing, and (ii) promptly provide Boulder with copies of all executed amendments, modifications or replacements of the Commitment Letter and (it being understood that any definitive agreements with respect theretoamendments, modifications or replacements will only be as permitted in the Merger Agreement). Trimble acknowledges and agrees that AGCO shall not be required to consummate Without limiting the Available Financing before the final day generality of the Marketing Period.
foregoing, Pinnacle will promptly notify Boulder (c) AGCO shall give Trimble prompt notice (xA) of any breach (or threatened breach) or default (or any event or circumstance that, with notice or lapse of time or both, could reasonably be expected to give rise to any breach or default) by any party to the Commitment Letter Financing Letters or definitive agreements relating related to the Committed Financing of Financing, which AGCO has Knowledge if such breach or default would result reasonably be expected to cause Pinnacle’s and the Purchaser’s representations in a material delay of, or in any way limit, the availability of Merger Agreement regarding the Committed FinancingFinancing to no longer be true and correct, (yB) of the receipt by Pinnacle or the Borrower of any oral or written notice or other communication, in each case communication from any Committed Financing Source Lender with respect to any (1) actual or potential threatened material breach, material default, termination or repudiation by any party to the Commitment a Financing Letter or any definitive agreements relating related to the Committed Financing of any provisions of the Commitment any Financing Letter or such definitive agreements, (2) material dispute or disagreement between or among any parties to a Financing Letter or any definitive agreements relating related to the Committed Financing if such breach, default, termination or repudiation would result in (3) failure by a material delay of, party to the Financing Letters to fund the Financing or in the reduction of any way limit, the availability amount of the Committed Financing Financing, and (zC) if for any reason Pinnacle at any time for any reason AGCO believes in good faith that it or the Borrower will not be able to obtain all or any portion of the Committed Financing on the terms and conditionsterms, in the manner or from the Committed Financing Sources sources contemplated by the Commitment Letter Financing Letters or any definitive agreements relating related to the Committed Financing. As soon Upon request of Pinnacle or the Purchaser, Boulder will provide reasonable cooperation and assistance to Pinnacle and the Purchaser in connection with the arrangement of the Financing as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information may be reasonably requested by Trimble relating Pinnacle or the Purchaser and that is necessary, customary or advisable in connection with Pinnacle’s and the Purchaser’s efforts to any circumstance referred obtain the Financing (provided that such requested cooperation and assistance does not unreasonably interfere with the ongoing business of Boulder). Boulder will also provide to in clause Pinnacle the Required Bank Information (x)defined below) prior to the commencement of a period (the “Bank Marketing Period”) of at least 10 consecutive business days prior to the Closing (provided, (ythat the Bank Marketing Period will not commence prior to January 4, 2016 and will exclude January 18, 2016 and February 15, 2016) or (z) of the immediately preceding sentence; provided such shorter period as Pinnacle otherwise specifies in writing. Boulder agrees that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause will give ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and notice if it becomes aware that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Bank Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies taken as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included whole is or becomes incorrect in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputationmaterial respect.
Appears in 1 contract
Financing. (a) Subject Buyer shall, and shall cause its Affiliates to, use commercially reasonable efforts to the terms take, or cause to be taken, all appropriate action and conditions of this Agreementto do, AGCO shall use its reasonable best efforts or cause to be done, all things necessary, proper or advisable under applicable Laws, and to execute and deliver, or cause to be executed and delivered, such instruments and documents as may be required, to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) as promptly as reasonably practicable on the terms (including the “market flex” provisions) and subject only to the conditions set forth contained in the Commitment Letter Financing Commitments (and, if applicable in the case of the Alternate Financing, only those conditions specified in the Financing Commitments as being applicable to the Alternate Financing), including to (i) negotiate and enter into definitive agreements with respect to the Financing on the terms (including any the “market flex” provisions provisions) and subject only to the conditions contained in the Fee LetterFinancing Commitments (and, if applicable in the case of the Alternate Financing, only those conditions specified in the Financing Commitments as being applicable to the Alternate Financing) or on such other terms and conditions that are acceptable to AGCO Buyer so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver agreements (A) with respect do not contain any additional or modified conditions or other contingencies to the Commitment Letter funding of the Financing than those contained in the Financing Commitments as of the date of this Agreement (and, if applicable in the case of the Alternate Financing, only those conditions specified in the Financing Commitments as of the date of this Agreement as being applicable to the Alternate Financing), (B) are in a form that is otherwise not reasonably likely to impair or delay the funding of the Financing or the Fee Letter or such definitive documents, as applicable, reduces Principal Closing and (C) do not reduce the aggregate amount of the Committed Financing set forth in the Financing Commitments as of the date of this Agreement (or, if applicable in the case of the Alternate Financing, reduce the aggregate amount of Financing contemplated by the Alternate Financing Commitments as set forth in the Financing Commitments as of the date of this Agreement), (ii) satisfy, and cause its Subsidiaries to satisfy, on a timely basis all conditions applicable to Buyer or its Subsidiaries contained in the Financing Commitments (or, if applicable in the case of the Alternate Financing, those conditions contained in the Alternate Financing Commitments) and (iii) consummate the Financing contemplated by the Financing Commitments (or the Alternate Financing Commitments, if applicable) at the Principal Closing. Buyer shall, and shall cause its Subsidiaries to, refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any of the conditions contained in the Financing Commitments (or the Alternate Financing Commitments, if applicable) or in any definitive agreement related to the Financing. Without limiting the generality of the foregoing, Buyer shall not have drawn more than $600,000,000 under the revolving credit facility under the Existing Credit Agreement (as defined in the Financing Commitments) as of the Closing (without giving effect to any amounts drawn to fund the Cash Consideration).
(b) For the avoidance of doubt and notwithstanding anything to the contrary in this Section 6.06, Buyer acknowledges and agrees that its obligation to consummate the Transactions on the terms and subject to the conditions set forth herein are not conditioned upon the availability or consummation of the Financing, the availability of any replacement commitments or receipt of the proceeds therefrom and, accordingly, the parties hereto agree that a failure of Buyer to close the Transactions due to the failure or inability to consummate the Financing constitutes a breach of this Agreement.
(c) Buyer shall not agree to or permit any amendment, supplement or other modification of, or waive any of its rights under, any Financing Commitments (or the Alternate Financing Commitments, if applicable) or the definitive agreements relating to the Financing except (i) with Seller’s prior written consent, which consent shall not be unreasonably withheld, (ii) to the extent such modification or waiver is not materially adverse to Seller or (iii) to add additional Financing Sources who had not executed the Financing Commitments as of the date hereof and amend the allocation of economics or other related terms with respect to the existing and additional Financing Sources, provided that, in the case of clauses (ii) and (iii), such amendment, supplement, modification or waiver does not (A) reduce the aggregate amount of any portion of the Financing (including by increasing the amount of fees to be paid or original issue discount as compared to the fees and original issue discount contemplated by the Financing Commitments on the date hereof unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)amount), or (B) imposes impose new or additional conditions precedent to the availability of the Financing or otherwise expandsexpand, amends amend or modifies modify any of the conditions precedent to the Financing in a manner that could reasonably be expected to materially delay or prevent the funding of the Financing (or satisfaction of the conditions to the Committed Financing, in a manner that would, in ) at the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Principal Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (yC) adversely impact the ability of AGCO Buyer or any of its Affiliates to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter Commitments (or definitive financing documents related theretothe Alternate Financing Commitments) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing.
(d) If any portion of the Financing contemplated by the Commitment Letter becomes unavailable on the terms and conditions contained in the Commitment Letter (including the “market flex” provisions included provisions) contained in the Fee Letter) Financing Commitments (or the Alternate Financing Commitments, if applicable), Buyer shall promptly notify Seller, and Buyer shall, and shall cause its Affiliates to, use commercially reasonable efforts to obtain, as promptly as practicable following the occurrence of such event, replacement commitments on such other terms that will enable Buyer to consummate the Transactions and that are acceptable not less favorable in the aggregate to AGCO so long Buyer than those contained in the Financing Commitments; provided that such replacement commitments shall not (i) be subject to any additional or modified conditions or other contingencies to the funding of the Financing other than those contained in the Financing Commitments or (ii) otherwise be reasonably likely to impair or delay the funding of the Financing or the Principal Closing. Buyer shall deliver to Seller complete and correct copies of all amendments, supplements, other modifications or agreements (including Redacted Fee Letters) pursuant to which any amended, supplemented, modified or replacement commitments shall provide Buyer with any portion of the Financing.
(e) Seller shall, and shall cause its Affiliates to, and shall cause its and their employees to, use commercially reasonable efforts to provide, and shall direct its and their accountants, legal counsel, other advisors and representatives to use commercially reasonable efforts to provide, all cooperation in connection with the arrangement of the Financing as may be reasonably requested by Buyer, including delivering to Buyer the Marketing Financial Information and using commercially reasonable efforts to (i) deliver to Buyer (A) the financial information described in Schedule 6.06(e) by the dates indicated on Schedule 6.06(e) and (B) by the date that is fifteen (15) calendar days after the last day of each calendar month, a statement of sales with respect to the Business on a monthly basis consistent with such financial information previously provided to Buyer by Seller, (ii) upon reasonable notice, cause Employees of the Business to participate in a reasonable number of meetings and presentations with prospective lenders and investors, and sessions with the ratings agencies contemplated by the Financing Commitments, (iii) reasonably assist Buyer and the Financing Sources in their preparation of (A) any bank information memoranda and related lender presentations, and similar documents required in connection with the Financing, and (B) materials for rating agency presentations (provided that Buyer acknowledges and agrees that no such memoranda, documents, presentations or other terms and conditions constitute Permitted materials prepared in connection with the Financing Termsmay include any report or opinion of Seller’s independent auditors or otherwise include any reference to Seller’s independent auditors), (Civ) satisfy all conditions to funding reasonably assist Buyer in connection with the Commitment Letter preparation of any pledge and such security documents and other definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate financing documents as may be reasonably requested by Buyer or the Committed Financing at or prior to the Closing Date, as applicable, Sources (including using its reasonable best efforts to cause obtain title and lien searches) and otherwise reasonably facilitating the lenders pledging of collateral and the granting of security interests in respect of the Financing, (v) provide Buyer all documentation and other persons committing information with respect to fund Seller and its Subsidiaries as shall have been reasonably requested in writing by Buyer at least ten (10) business days prior to the Committed Financing on the Principal Closing Date (that is required in connection with the Financing by U.S. regulatory authorities under applicable “Committed know-your-customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent required under the Financing Sources”) Commitments and applicable to Seller and its Subsidiaries, and (Dvi) enforce provide executed authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders or investors and containing a representation to the Financing Sources that the public side versions of such documents, if any, do not include material non-public information about Seller or its rights under Subsidiaries or securities and executing ratings agency engagement letters as required in connection with the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees Financing (provided, that AGCO Seller shall not be required to consummate pay any cost or expenses relating to rating agency engagement letters). Notwithstanding the Available Financing before foregoing, (i) such requested cooperation shall not unreasonably interfere with the final ongoing operations of Seller and its Affiliates and (ii) in connection with such requested cooperation, Seller and its Affiliates shall not be required to provide any financial statements or financial information in respect of the Business other than the Marketing Financial Information, and to use commercially reasonable efforts to provide to Buyer (A) the financial information described in Schedule 6.06(e) by the dates indicated on Schedule 6.06(e) and (B) by that date that is fifteen (15) calendar days after the last day of each calendar month, a statement of sales with respect to the Marketing PeriodBusiness on a monthly basis consistent with such financial information previously provided to Buyer by Seller. Buyer shall, promptly upon request by Seller, reimburse Seller for all out-of-pocket costs incurred by Seller or any of its Affiliates in connection with such cooperation. In the event that Buyer is provided with any report or opinion of Seller’s independent auditors, Buyer shall not provide such report or opinion or any portion thereof to any of the Financing Sources unless such Financing Sources have executed and delivered to Seller and Seller’s independent auditors an acknowledgment substantially in the form previously provided to Buyer. Buyer and its Affiliates shall, on a joint and several basis, indemnify and hold harmless Seller and its Affiliates from and against any Damages suffered or incurred by them in connection with the arrangement of the Financing and any information utilized in connection therewith. Seller shall have the right to consent to the use of the Transferred Trademarks (but not any other trademarks or logos of Seller or any of its Affiliates) in connection with the Financing (which consent shall not be unreasonably withheld, conditioned or delayed); provided nothing in this sentence shall restrict Buyer from using Seller trademarks in a descriptive manner to describe the Transactions.
(cf) AGCO Buyer shall keep Seller informed on a timely basis of the status of the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Buyer shall give Trimble Seller prompt notice of (xi) any default or breach (or any event that, with or without notice, lapse of any breach time or both, would reasonably be expected to constitute a default or breach) by any party to under the Commitment Letter Financing Commitments (or any Alternate Financing Commitment, if applicable) or the definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay ofBuyer becomes aware, or in (ii) any way limit, the availability termination of the Committed FinancingFinancing Commitments (or any Alternate Financing Commitment, if applicable), (yiii) of the receipt of any written notice or other communicationwritten communication from any Person party to a Financing Commitment (or any Alternate Financing Commitment, if applicable) with respect to any (x) actual or potential default, breach, termination or repudiation of any Financing Commitment (or any Alternate Financing Commitment, if applicable), any definitive agreement relating to the Financing or any provision of the Financing Commitments (or the Alternate Financing Commitments, if applicable), in each case from by any Committed party thereto, or (y) material dispute or disagreement between or among any parties to any Financing Source Commitment (or any Alternate Financing Commitment, if applicable), with respect to the obligation to fund the Financing, including any actual or potential material breach, material default, termination or repudiation by any party condition with respect to the Commitment Letter or definitive agreements relating obligation to fund the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay ofFinancing, or in any way limitthe amount of Financing to be funded at the Principal Closing Date, the availability of the Committed Financing and (ziv) if at any time for any reason AGCO Buyer believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditionsterms, in the manner or from the Committed Financing Sources sources contemplated by the Commitment Letter Financing Commitments (or definitive agreements relating to the Committed FinancingAlternate Financing Commitments, if applicable). As soon as reasonably practicable practicable, and in any event, within two (2) business days after the date Trimble Seller delivers to AGCO Buyer a written request, AGCO Buyer shall provide any information reasonably requested by Trimble Seller relating to any circumstance referred to in clause (xi), (yii), (iii) or (ziv) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(dg) Prior Buyer acknowledges that the information being provided to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter it in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant is subject to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with of Section 6.05. With respect to information disclosed to any rating agency (the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) Confidential Rating Agency Information”), Buyer shall inform such rating agency of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements confidential nature of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies Confidential Rating Agency Information and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any such information provided in writing to such rating agency as “confidential”. Buyer shall be responsible for any breach of its Subsidiaries’ Organizational Documents (to the extent this covenant by any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputationrating agency.
Appears in 1 contract
Sources: Asset Purchase Agreement (Integra Lifesciences Holdings Corp)
Financing. (ai) Subject Buyer intends to finance the terms Purchase Price and conditions its other obligations under this Agreement through borrowings under term and revolving credit facilities, through the issuance of this Agreementdebt securities in a public and/or 144A or other private offering, AGCO or from other financing sources that may be available to Buyer, or from a combination of the foregoing (the “Financing”). Buyer shall use its reasonable best efforts to obtain consummate the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth as Buyer shall deem appropriate in the Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) discretion in order to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, allow it to consummate the Committed Financing at or prior transactions contemplated hereby. Notwithstanding anything herein to the Closing Datecontrary, as applicable, including using its reasonable best efforts nothing in this Agreement shall be deemed to cause the lenders and the other persons committing require or obligate Buyer to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and commence or pursue any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required legal action or proceeding seeking to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of compel any breach or default by any party Person to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or provide any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(dii) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCOTarget shall, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provideits Subsidiaries, and shall use its reasonable best efforts to cause its and their respective its Subsidiaries’ Representativesrespective officers, employees, consultants and advisors, including its legal counsel and auditors, to provide to AGCO, at AGCO’s sole expense, all reasonable cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financingarrangement of the Financing as may be reasonably requested by Buyer (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Target and its Subsidiaries or otherwise impair, in any material respect, the ability of any officer or executive of Target or its Subsidiaries to carry out their duties to Target or to its Subsidiaries, respectively). The Sellers hereby guaranty the performance of Target’s obligations pursuant to this paragraph (ii). Without limitation of limiting the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable noticecooperation by Target, participation by management and Representatives of Trimble, Company its Subsidiaries and their respective officers, employees, consultants and advisors, shall include: (A) entering into and delivering such documents, agreements and instruments, and executing and delivering such officer’s certificates, including certificates of the Chief Financial Officer of Target or any of its Subsidiaries, with respect to solvency matters and as are otherwise customary in financings of such type; provided that such documents, agreements, instruments, and certificates shall be effective until the Closing; (B) pledging, granting security interests in, and otherwise granting Liens on, Target’s and its Subsidiaries assets; provided that no obligation of Target or any of its Subsidiaries under any such pledge or grant shall be effective until the Closing; (C) executing and delivering such definitive financing agreements, hedging arrangements, legal opinions, customary bank book authorization letters, and other documents related to the Financing; provided that no such agreements, arrangements, opinions, letters or documents shall be effective until the Closing; (D) (1) preparing and furnishing business projections, financial statements, pro forma statements and other financial data and pertinent information of the type required by Regulation S-X and Regulation S-K under the Securities Act and of the type and form customarily included in either public offerings under the Securities Act or private placements resold under Rule 144A of the Securities Act, to consummate the offerings of debt securities contemplated by the Financing, all as may be reasonably requested by Buyer, (2) preparing and delivering to Buyer, no later than October 30, 2009, unaudited consolidated financial statements of Target and its Subsidiaries prepared in accordance with appropriate seniority GAAP, consistently applied, for the twelve month period ended June 30, 2009 and expertisethe three and nine month periods ended September 30, 2009, and (3) unaudited consolidated financial statements of Target and its Subsidiaries for each fiscal quarter ending after September 30, 2009 (the financial statements referenced in clauses (2) and (3), together with the materials in clause (1), are referred to herein as the “Required Financial Information”), which Required Financial Information shall be Compliant; (E) making Target’s representatives to be reasonably available to assist in the Financing, including participation in a reasonable number of meetings, presentations (including management presentations), road shows, presentations, conference callsdrafting sessions, due diligence sessions, sessions and sessions with rating agencies agencies, including meetings with prospective lenders or underwriters, and potential lenders and other customary syndication activities and reasonably cooperating assistance with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, projections, offering documents, private placement memoranda, prospectuses, bank information memoranda documents and similar documents required in connection with the Available Financing Financing; (F) cooperating reasonably with the marketing efforts of the Financing; (G) cooperating reasonably with Buyer in ensuring that any syndication efforts benefit from the existing lending and investment banking relationships of Target and its Subsidiaries; (H) obtaining or any replacement thereof permitted hereunder)providing customary accountants’ comfort letters, including consents, legal opinions, survey and title insurance as requested by Buyer along with such assistance and cooperation from such independent accountants and other professional advisors as reasonably requested by Buyer; (I) taking all actions reasonably necessary to permit the delivery of customary authorization and representation letters to the extent contemplated by or customary prospective lenders involved in the Available Financing to (1) evaluate Target’s and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or its Subsidiaries’ current assets, cash management and accounting systems, policies and procedures relating thereto for the Business purpose of establishing collateral arrangements and similar documents required (2) establish bank and other accounts and blocked account agreements and lock box arrangements in connection with arranging the Available Financing and updating foregoing; provided that no right of any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCOlender, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no nor obligation of the Company Target or any of its Subsidiaries under any such document Subsidiaries, thereunder shall be effective until the Closing other than Closing; (J) assisting Buyer with regard to recording the transactions for financial reporting purposes in the case accordance with GAAP, including cooperating in good faith, if requested by Buyer, in developing alternative means of the authorization so doing and representation letters referred to in clause assisting with any presentation with respect thereto, (iiK) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates otherwise reasonably cooperating in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers consummation of the Company Financing and its Subsidiaries on the syndication and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereofmarketing thereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to seeking any rating agencies’ confirmations or approvals for the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership CertificationFinancing; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputation
Appears in 1 contract
Financing. (ai) Subject to the terms and conditions of this Agreement, AGCO shall The Purchaser will use its reasonable best efforts to take, or cause to be taken, all actions and use its reasonable best efforts to do, or cause to be done, all things necessary, proper or advisable to arrange, consummate and obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) financing on the terms and conditions set forth described in the Debt Commitment Letter (including as such terms and conditions may be modified or adjusted in accordance with the terms hereof and thereof and within the limits of any “market flex” provisions in therein) (the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms“Financing”), and AGCO shall the Purchaser will not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, the Debt Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver would (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces reduce the aggregate amount of the Committed Financing (including by increasing changing the amount of fees to be paid in respect of or original issue discount unless of the Committed Financing is increased by a corresponding amount (or the Committed Financing is otherwise made available to fund payment of fees having similar effect), in each case, other than any such fees or original issue discount) from discount that contemplated in the Commitment Letter is paid or such definitive documents (otherwise funded by sources other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from the Financing), unless, after such reduction, the Contemplated Transactions hereby could still be consummated on the Initial Closing Date and the aggregate proceeds of other sources the remaining portion of financing or the Financing and of any Replacement Financing plus unrestricted available cash or otherwise in accordance with Section 7.15(b)(A)), on hand of the Purchaser as of the Initial Closing Date would be sufficient to satisfy the obligations to pay the Required Closing Amount or (B) imposes impose new or additional conditions conditions, or otherwise expandsamend, amends modify or modifies expand any conditions (in a manner adverse to the Purchaser or the Sellers), to the receipt of the conditions to Financing, in the Committed Financingcase of either clause (A) or (B) above, in a manner that would, in the case of this subclause (B), could reasonably be expected to (x1) prevent prevent, impede or materially delay the Closing or the availability ability of the Committed Financing on Purchaser to consummate the Closing Date taking into account the expected timing Initial Closing, (2) make any portion of the Closing Date, taking into account the expected timing Financing (or satisfaction of the Marketing Periodconditions to obtaining the Financing) less likely to be obtained or prevent, impede or delay in any material respect the funding of the Financing or (y3) adversely impact the ability of AGCO the Purchaser to enforce its rights against the other parties to the Debt Commitment Letter; provided that the Purchaser may, without the consent of the Sellers, (x) amend the Debt Commitment Letter (I) in accordance with any material respect “market flex” provisions thereof and (II) to add lenders, lead arrangers, bookrunners, syndication agents or similar entities (in each case, excluding any Affiliates of the terms Purchaser) who had not executed the Debt Commitment Letter as of the date of this Agreement and (y) otherwise amend or replace the Debt Commitment Letter so long as in the case of this clause (y), (I) any such amendment, modification or waiver not in violation amendment satisfies the requirements of these clauses (A) and (B)) above and (II) with respect to replacements, the replacement debt commitments otherwise satisfy the terms and conditions of an Alternative Financing set forth in clause (iii) below (any debt financing under any such replacement debt commitment letter satisfying such requirements, a “Permitted Financing TermsReplacement Financing”); provided. The Purchaser shall provide a correct and complete copy of each replacement debt commitment letter (together with a correct and complete copy of any related replacement fee letter, that subject which may be redacted as provided in Section 4.5 with respect to compliance the Fee Letter) with respect to any Replacement Financing to the other provisions Sellers as promptly as practicable but in any event within three (3) Business Days of this Section 7.15, AGCO may amend the Purchaser’s entry into such commitment letter. In the event of such amendment or replacement of the Debt Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(aclause (i), (1) the financing under such amended or replaced Debt Commitment Letter will be deemed to be amendedthe “Financing” as such term is used in this Agreement, modified or replaced and references to (2) the term “Debt Commitment Letter” shall will be deemed to include any such document as permitted by this Section 7.15(aamended or replaced debt commitment letter, (3) the term “Fee Letter” will be deemed to be amended, modified include any amended or replacedreplaced fee letter with respect thereto and (4) any reference to the “Financing Sources” will include the financing institutions contemplated to provide any such alternative or replacement financing.
(bii) AGCO shall The Purchaser will use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (A) maintain in effect the Debt Commitment Letter (including any definitive agreements entered into in connection therewith), (B) satisfy on a timely basis (or obtain the waiver of) all conditions in the Debt Commitment Letter applicable to, and within the control of, the Purchaser necessary to obtaining the Financing on the Initial Closing Date and comply with (or obtain a waiver of) its obligations thereunder (but excluding any condition where the failure to be so satisfied is a direct result of the Sellers’ failure to furnish information as required under Section 5.8(b)), (C) subject to the terms and upon satisfaction or waiver of the conditions set forth in the Debt Commitment Letter (without limiting clause (B) above), cause the Financing Sources under the Debt Commitment Letter to fully fund the Financing provided for thereunder on or prior to the Initial Closing Date and (D) fully enforce the Financing Sources’ obligations and its rights under the Debt Commitment Letter to the extent required to consummate the Contemplated Transactions on the Initial Closing Date. The Purchaser will keep the Sellers reasonably informed on a reasonably current basis and in reasonable detail of the status of the Purchaser’s efforts to arrange the Financing and to satisfy the conditions thereof and shall provide to the Sellers, upon the Sellers’ request and otherwise within three (3) Business Days of the occurrence thereof, copies of any amendments, modifications or supplements to the Debt Commitment Letter related to the availability of the Financing, the commitment by the lenders to provide the Financing, or the conditions, the “certain funds” provisions, any “market flex” provisions (redacted in a customary manner) or the termination provisions of the Debt Commitment Letter. In the event that the Purchaser commences an enforcement action to enforce its rights under the Debt Commitment Letter or the definitive agreements entered into in connection therewith and/or to compel the Financing Sources under the Debt Commitment Letter to fund the Financing (any such action, a “Financing Action”), the Purchaser shall keep the Sellers reasonably informed on a reasonably current basis and in reasonable detail of the status of the Financing Action.
(iii) If any portion of the Financing becomes reasonably likely to be unavailable or the Purchaser becomes aware of any event or circumstance that is reasonably likely to result in any portion of the Financing being unavailable (other than as a result of a breach by the Sellers of this Agreement that would cause the Financing not to be available in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Debt Commitment Letter (or definitive financing documents related theretoLetter), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCOin each case, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained contemplated in the Debt Commitment Letter (including any “market flex” provisions) and such portion is required to fund the Required Closing Amount or any other amounts required to be funded by the Purchaser on the Initial Closing Date under this Agreement, (i) the Purchaser will promptly notify the Sellers and (ii) the Purchaser will use reasonable best efforts to arrange and obtain as promptly as practicable following the occurrence of such event alternative financing (from the same financing source or a bona fide third party financing source) (A) in an amount sufficient, when added to any portion of the Financing that is available and unrestricted available cash on hand of the Purchaser, to pay in cash the Required Closing Amount and (B) that does not impose new or additional conditions that were not contained in the Debt Commitment Letter or otherwise expand, amend or modify any of the conditions that were contained in the Debt Commitment Letter (taking into account any “market flex” provisions included of the Debt Commitment Letter) (in a manner adverse to the Purchaser or the Sellers), in each case, in a manner materially less favorable or more onerous to the Purchaser or the Sellers, taken as a whole, or that could reasonably be expected to prevent, impede or delay the ability of the Purchaser to consummate the Initial Closing or prevent, impede or delay in any material respect the funding of the Financing (any such alternative financing satisfying such requirements, an “Alternative Financing”). The Purchaser shall provide a correct and complete copy of each alternative financing commitment letter (together with a correct and complete copy of any related fee letter, which may be redacted as provided in Section 4.5 with respect to the Fee Letter) to the Sellers as promptly as practicable but in any event within three (or on 3) Business Days of the Purchaser’s entry into such other terms that are acceptable commitment letter. In such event (1) the term “Financing” will be deemed to AGCO so long as such other terms and conditions constitute Permitted Financing Terms)include any Alternative Financing, (C2) satisfy all conditions the term “Debt Commitment Letter” will be deemed to funding in the Commitment Letter and such definitive agreements include any commitment letters with respect thereto that are within its control andto any such Alternative Financing, subject (3) the term “Fee Letter” will be deemed to satisfaction of all conditions include any fee letter with respect to funding, to consummate the Committed any such Alternative Financing at or prior and (4) any reference to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under ” will include the Commitment Letter and financing institutions contemplated to provide any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Periodsuch Alternative Financing.
(civ) AGCO Without limiting the generality of the foregoing, the Purchaser shall give Trimble prompt the Sellers notice as promptly as reasonably practicable and in any event within three (x3) Business Days: (A) of any breach or default by any party to the Debt Commitment Letter or definitive agreements relating document related to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, Purchaser becomes aware; (yB) of the receipt by the Purchaser of any written notice or other communication, in each case written communication from any Committed Financing Source with respect to (1) any actual or potential material breach, material default, termination or repudiation by any party to the Debt Commitment Letter or any definitive agreements relating document related to the Committed Financing of any provisions of the Debt Commitment Letter or any definitive agreements relating document related to the Committed Financing if such breachor (2) any dispute or disagreement between the Purchaser (and/or its Subsidiaries) on one hand, defaultand the other parties to the Debt Commitment Letter or any definitive document on the other hand, termination or repudiation would result in a material delay of, or in any way limit, that pertains to the availability of the Committed Financing or the commitment by the lenders under the Debt Commitment Letter to provide the Financing, or the conditions, the “certain funds” provisions, any “market flex” provisions (if relevant to the availability of the Financing) or the termination provisions of the Debt Commitment Letter; and (zC) if at any time for any reason AGCO the Purchaser believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditionsterms, in the manner or from the Committed Financing Sources sources contemplated by the Debt Commitment Letter or the definitive agreements relating documents related to the Committed Financing. As soon as reasonably practicable after ; provided, however, that in no event will the date Trimble delivers Purchaser be under any obligation to AGCO a written request, AGCO shall provide disclose any information reasonably requested shared among the Purchaser and its professional advisors in connection with matters contemplated by Trimble relating to any circumstance referred to in clause (x), (yA) or (zB) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other similar legal privilege if AGCO the Purchaser shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon .
(v) Notwithstanding any other provision in this Agreement, the occurrence Purchaser shall have the right to substitute the net cash proceeds received by the Purchaser after the date hereof and on or prior to the Initial Closing Date of consummated equity or equity-linked offerings or debt offerings or other incurrences of debt (including unsecured notes and any circumstance referred draws under available revolving credit facilities, the proceeds of which are intended to in clause fund the Required Closing Amount) (x)such equity, (yequity-linked or debt offerings, “Additional Offerings”) for all or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable by reducing commitments under the Debt Commitment Letter; provided that (other than A) any such debt does not mature, and to the extent any such debt has a scheduled, special or mandatory redemption right, such right is not exercisable prior to, the earlier of the consummation of the Contemplated Transactions on the Initial Closing Date, the termination of this Agreement or the Termination Date as a result applicable (for the avoidance of any reductions thereof permitted under Section 7.15(b)doubt as it may be extended pursuant to this Agreement), (B) such offering or if any portion incurrence does not result in a breach or default under the Debt Commitment Letter, (C) the aggregate amount of the Committed Financing otherwise becomes unavailable committed under the Debt Commitment Letter, together with the unrestricted, available cash on hand of the terms Purchaser and conditions such available proceeds as of the Initial Closing Date are sufficient to pay the Required Closing Amount, (D) such proceeds are limited in use to, and are and remain unrestricted and available for, the consummation of the Contemplated Transactions (including the flex provisionspayment of the Required Closing Amount) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in or funded into an amount at least equal to the unavailable portion thereof, as the case may be (taking into escrow account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially release provisions no less favorable to AGCO (or its Subsidiaries), as determined the Purchaser and the Sellers in the reasonable judgment of AGCO, any material respect than the terms and conditions precedent set forth in the Debt Commitment Letter and (E) the Fee Letter (including Purchaser promptly notifies the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, Sellers in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form detail of any such equity financing). AGCO shall deliver to Trimble true substitution and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financingreduction.
(db) Prior to Through the ClosingInitial Closing Date, Trimble shall the Sellers will use its reasonable best efforts to provide to AGCOthe Purchaser, and shall will cause ▇▇▇▇▇▇▇’▇ their respective Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCOthe Purchaser, at AGCOthe Purchaser’s sole expensecost and expense as provided in Section 5.8(e), in each case subject to Sections 5.5(b) and 5.8(f), all cooperation reasonably requested by AGCO and the Purchaser that is customary and reasonably necessary in connection with arranging, obtaining and syndicating the Financing or the financing pursuant to Additional Offerings (collectively, the “Available Financing”) and causing the conditions in the Debt Commitment Letter to be satisfied as such matters relate to the Acquired Company and the Business (in each case, to the extent that (1) such matters require the Sellers’ cooperation and are within their or any member of the Seller Group’s control and (2) such cooperation is customarily required provided for financings of the type contemplated contemplated), including using Sellers’ reasonable best efforts in (i) assisting with the preparation of reasonable and customary bank information memoranda and packages (confidential and public), lender and investor presentations, rating agency materials, private placement memoranda, prospectuses and similar documents, and providing reasonable and customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders and containing reasonable and customary information (all such documents and materials, collectively, the “Offering Documents”), (ii) furnishing to the Purchaser as promptly as reasonably practicable (A) all Required Information and (B) all pertinent information relating to the Acquired Company and the Business (including their businesses and operations) as may be reasonably requested by the Commitment Letter Purchaser and that is customarily needed for an Available Financing, including financial and other information relating to the Acquired Company and the Business reasonably requested by the Purchaser to allow the Purchaser to prepare historical pro forma financial statements of the Purchaser in accordance with Regulation S-X (regardless of whether pro forma financial information would be required to be presented thereunder in the Offering Documents) with respect to the Contemplated Transactions, (iii) having the Sellers designate members of senior management of the Business to participate in a reasonable number of presentations, meetings (including a reasonable number of customary meetings with the parties acting as lead arrangers, agents, underwriters, initial purchasers or placement agents for, and prospective lenders of, the Available Financing), due diligence sessions, drafting sessions and sessions with ratings agencies in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and Financing or other customary syndication activities and reasonably cooperating (but not including any presentations, meetings, sessions or other interactions with the marketing efforts of AGCO and the Financing Sourcesany investors in securities), in each case, in connection with the Available Financing, all at reasonable times and locations to be mutually agreed;
agreed and upon reasonable advance notice, (iiiv) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting the Purchaser in the Purchaser’s preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the definitive financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters documents (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputationany
Appears in 1 contract
Financing. (a) Subject to the terms Each of Parent and conditions of this Agreement, AGCO shall Merger Sub will use its reasonable best efforts to take or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate and obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth described in the Commitment Financing Letter, including using its reasonable best efforts (i) to maintain in effect the Financing Letter and, if entered into prior to the Closing, the definitive agreements with respect to the Financing contemplated by the Financing Letter, (ii) to negotiate definitive agreements with respect thereto on the terms and conditions contained in the Financing Letter (including any “flex” provisions thereof), and upon execution thereof, deliver a copy thereof to the Company, (iii) to satisfy (or obtain the waiver of) all conditions on a timely basis to obtaining the Financing applicable to each of Parent and Merger Sub set forth in such definitive agreements that are within its control, (iv) to comply in all material respects with its obligations under the Financing Letter (or obtain the waiver thereof) and (v) to enforce its rights under the Financing Letter in the Fee Letterevent of a breach or other failure to fund by the Lender that impedes or delays the Closing; provided, however, that nothing in this Section 6.12(a) shall require Parent or on such other Merger Sub to (x) consummate or agree to consummate the sale, divestiture or disposition of any assets, businesses or capital stock of Parent or any Parent Subsidiary or (y) agree to terms and conditions (including any “flex” provisions) that are acceptable are, in the aggregate, less favorable in any material respect to AGCO so long as Parent, Merger Sub and the Company than those contained in the Financing Letter (any such action, a “Burdensome Financing Action”). Parent shall give the Company prompt notice upon becoming aware of any material breach of the Financing Letter by a party to the Financing Letter or any termination of the Financing Letter. Parent shall keep the Company informed on a reasonable basis and in reasonable detail of the status of its efforts to arrange the Financing and provide to the Company, upon its written request, copies of the definitive material documents related to the Financing (other terms than fee letters and conditions constitute Permitted any other documentation subject to confidentiality restrictions). Parent shall have the right from time to time to amend, replace, supplement or otherwise modify, or waive any of its rights under, the Financing TermsLetter and/or substitute other debt or equity financing for all or any portion of the Financing from the same and/or alternative financing sources; provided, and AGCO shall not permit however, that any amendment such amendment, replacement, supplement or other modification to be made to, or any waiver of any provision under, of the Commitment Financing Letter that amends the Financing and/or substitution of all or any portion of the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver Financing shall not (A) with respect expand upon the conditions precedent or contingencies to the Commitment Letter or the Fee Letter or such definitive documents, Financing as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated set forth in the Commitment Financing Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new be reasonably expected to prevent or additional conditions impede or otherwise expands, amends or modifies any delay the consummation of the conditions to Merger, the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against Subsequent Merger and the other parties Transactions. Parent shall be permitted to reduce the Commitment amount of Financing under the Financing Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”)its reasonable discretion; provided, however, that subject Parent shall not reduce the Financing to compliance with an amount committed below the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” andamount that is required, together with the Committed Financingfinancial resources of Parent, Merger Sub and the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto)Company, (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash including cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to fundingmarketable securities, to consummate the Committed Financing at Merger and the Subsequent Merger; provided, further, that such reduction shall not (1) expand upon the conditions precedent or prior contingencies to the Closing DateFinancing as set forth in the Financing Letter, as applicableor (2) be reasonably expected to prevent or impede or delay the consummation of the Merger, including using its the Subsequent Merger and the other Transactions. In the event that all conditions in the Financing Letter have been satisfied or, upon funding, will be satisfied, Parent and Merger Sub shall use their reasonable best efforts to cause the lenders and the other persons committing Lenders to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before Merger, the final day of Subsequent Merger and the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) other Transactions. In the event that Parent becomes aware of any breach event or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing circumstance that makes procurement of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, unlikely to occur in the manner or from the Committed sources contemplated in the Financing Sources Letter, Parent shall notify the Company and Parent and Merger Sub shall use their respective reasonable best efforts to arrange any such portion (other than amounts that are replaced by Parent’s cash on hand and marketable securities) from alternative sources (such portion from alternate sources, the “Alternate Financing”) in an amount sufficient to consummate the transactions contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written requesthereby; provided, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x)however, (y) or (z) of the immediately preceding sentence; provided that AGCO Parent shall not be required to share take any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Burdensome Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such eventAction. For the avoidance of doubt, the syndication of any part of the Financing in no accordance with the terms of the Financing Letter shall not be deemed to violate Parent’s obligations under this Agreement. In the event that either Parent or Merger Sub commences an enforcement action to enforce its rights under the Financing Letter and/or cause the Lenders to fund the Financing (any such action, a “Financing Action”), Parent or Merger Sub shall (x) keep the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or Company reasonably informed of the status of the Financing Action and (y) at the request of the Company, shall make Parent’s employees and Representatives (other than any of its Affiliates investment bankers, financial advisors or Lenders) reasonably available to (i) agree discuss the status of, and material developments with respect to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative FinancingAction.
(db) Prior to the Closing, Trimble the Company shall use its reasonable best efforts to provide to AGCOprovide, and shall cause ▇▇▇▇▇▇▇’▇ the Company Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representativesofficers and employees to provide, to provide to AGCO, at AGCO’s sole expenseon a timely basis, all reasonable cooperation reasonably requested by AGCO Parent and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter customary in connection with the Available Financing. Without limitation arrangement of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, to be incurred in connection with the Available FinancingTransactions (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and the Company Subsidiaries), at including using its reasonable times best efforts to (i) facilitate the provision of guarantees and locations to be mutually agreed;
pledge of collateral, if any (effective as of the Closing), (ii) delivery to AGCO of the Required Information and other provide financial and other pertinent information regarding the Business, Company and their respective the Company Subsidiaries and cooperate in the possession preparation of Trimblepro forma financial information for the Transactions (including information to be used in the preparation of an information package, offering memorandum, prospectus, prospectus supplement or similar document regarding the business, assets, operations, financial projections and prospects of Parent and the Company and their respective Subsidiaries and other assistance customary for such financing or reasonably necessary for the completion of the Financing) as may be reasonably requested in writing by AGCO Parent to assist in the preparation of materials customary offering or information documents to be used for rating agency presentationsthe completion of the Financing, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection cooperate with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and marketing efforts for the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents consenting to the reasonable use of its the Company’s and its the Company Subsidiaries’ trademarks and logos in connection with the Available Financinglogos; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor or reasonably likely to harm or disparage Trimble the Company or any of the Company Subsidiaries or the reputation or goodwill of the Company or any of the Company Subsidiaries), (iv) provide copies of the most recent appraisals, environmental reports, evidence of title (including copies of deeds, lease documentation, title insurance policies and/or commitments for title insurance, title opinions, surveys, and similar information), and similar information with respect to the properties and assets of the Company and the Company Subsidiaries as may be reasonably requested by Parent, (v) provide (or use reasonable best efforts to obtain from its advisors) other reasonably requested customary certificates or documents, including a customary certificate of the principal financial officer of the Surviving Corporation (in his capacity as such) with respect to solvency matters and any certificates and opinions customarily provided in connection with any Permanent Financing, (vi) request such customary legal opinions and customary accountant comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) as may be reasonably requested by Parent, (vii) participate in a reasonable number of meetings (including customary one-on-one meetings with the parties acting as lead arrangers or underwriters, as applicable, for the Financing and their counsel and senior management and Representatives, with appropriate seniority and expertise, of the Company), presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies as are reasonably necessary to consummate the Financing, (viii) assist Parent and its financing sources or underwriters, as applicable, in (A) the preparation of all credit agreements (including review of schedules for completeness), currency or interest hedging agreements or other agreements, offering documents, an offering memorandum, prospectus or prospectus supplement and other marketing and rating agency materials for the Financing or (B) the amendment or termination of any of the Company’s or the Company Subsidiaries’ existing credit agreements, currency or interest hedging agreements, or other agreements, in each case, on terms satisfactory to Parent and that are reasonably requested by Parent in connection with the Financing provided that no obligation of the Company or any of the Company Subsidiaries under any such agreements or amendments shall be effective until the Effective Time, in each case it being understood and agreed that information and documents provided by the Company and the Company Subsidiaries may be delivered to agents and lenders under the Financing Letter and their Representatives (subject to customary arrangements for confidentiality that are substantially similar to the provisions in the Confidentiality Agreement or reasonably acceptable to the Company), (ix) as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, including in connection with due diligence and preparation of pro forma financial information for the Transaction, (x) to permit any cash and marketable securities of the Company and the Company Subsidiaries to be made available to Parent, Merger Sub and Merger LLC at the Closing, (xi) provide audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available as soon as reasonably practicable but, in any case, by a date no later than 60 days after the end of the most recent fiscal year to the extent that the Closing has not occurred prior to September 30, 2010, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements as soon as reasonably practicable but, in any case, by a date not later than 25 days after the end of such interim period that is not a fiscal year end and all financial information relating to the Company and the Company Subsidiaries reasonably required by Parent in connection with the marketing efforts for a Permanent Financing and (xii) cooperate reasonably with Parent’s financing sources’ or underwriters’, as applicable, due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company; provided that no certificate, document or instrument referred to above shall be effective until the Effective Time and none of the Company or any of the Company Subsidiaries shall be required to pay any commitment or other similar fee or incur any other liability or obligation in connection with the Financing prior to the Effective Time. All non-public or other confidential information provided by the Company or any of its Representatives pursuant to this Section 6.12(b) shall be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Merger Sub shall be permitted to disclose such information to (i) potential syndicate members during syndication, subject to customary confidentiality undertakings by such potential syndicate members and (ii) potential investors in any public or private securities offering by Parent as determined in Parent’s reasonable judgment to be advisable for purposes of consummating the Financing. The Company shall be permitted a reasonable period of time to comment on any documents or other information circulated to potential financing sources that contain or are based upon any such non-public or other confidential information. If this Agreement is terminated prior to the Effective Time, Parent shall (A) promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs (including reasonable and documented attorneys’ fees) incurred by the Company or any of the Company Subsidiaries in connection with the cooperation of the Company and the Company Subsidiaries contemplated by this Section 6.12(b); and (B) indemnify and hold harmless the Company, the Company Subsidiaries and their respective Representatives from and against any and all reasonable and documented out-of-pocket losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with Third Party claims arising out of the arrangement of the Financing and any information used in connection therewith, except with respect to any information provided by the Company or any of the Company Subsidiaries or contained in the reputationCompany SEC Documents.
(c) For purposes of this Section 6.12, the term “Financing” shall also be deemed to include any Alternate Financing and any Permanent Financing and the term
Appears in 1 contract
Sources: Merger Agreement (Aon Corp)
Financing. (a) Subject On or prior to the terms and conditions date of this Agreement, AGCO shall use its reasonable best efforts Purchaser has delivered to obtain the Committed Financing Company and the Sellers true, complete and correct copies of (taking into account any reductions thereof pursuant a) an executed debt commitment letter, dated as of the date hereof (including all exhibits, annexes, schedules and term sheets attached thereto) (the “Commitment Letter”) and (b) an executed fee letter, dated as of the date hereof (which may be redacted to Section 7.15(b)(A)) on remove only the fee amounts, fee percentages, price caps and other economic terms and conditions set forth in the Commitment Letter (including any economic market “flex” provisions provisions) in a customary manner (none of which could reasonably be expected to adversely affect the Fee Letter) conditionality, availability or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver termination of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces reduce the aggregate amount available under the Financing below the Financing Amount)) (the “Fee Letter” and, together with the Commitment Letter, collectively, the “Debt Commitment Letter”), in each case of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these foregoing clauses (Aa) and (Bb), from the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities Sources party thereto. AGCO shall promptly deliver , pursuant to Trimble copies of any which such amendmentFinancing Sources have agreed, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with on the terms and subject to the conditions thereofset forth or referenced therein, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other to provide debt financing arrangements to Purchaser in the amounts set forth therein (any the provision of such debt financing, a “Permanent Financing” and, together with the Committed Financingfinancing as set forth therein, the “Available Financing”) and thereby reduce the amount ). As of the Committed Financing under date of this Agreement, the Debt Commitment Letter (or definitive financing documents related thereto)constitutes the legal, (y) reduce and/or replace the amount valid and binding obligation of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z)Purchaser and, to the extent knowledge of Purchaser, each other party thereto, and enforceable against Purchaser and, to the knowledge of Purchaser, each other party thereto in accordance with its terms, in each case, except as enforceability may be limited by the Bankruptcy and Equity Exception. The Debt Commitment Letter has not been amended or modified in any respect prior to or as of the date of this Agreement and, as of the date of this Agreement, (a) no Prohibited Modification is contemplated by Purchaser and (b) to the knowledge of Purchaser, the commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded or terminated. As of the date of this Agreement, no event or circumstance has occurred which, with or without notice, lapse of time or both, would constitute a default on the part of Purchaser or, to the knowledge of Purchaser, any of the other applicable parties thereto, under the Debt Commitment Letter. As of the date hereof and assuming the satisfaction or waiver of the conditions set forth in Section 7.1 and Section 7.2 (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of those conditions at the Closing), Purchaser has no reason to believe that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Debt Commitment Letter on will not be available as of the terms and Closing. There are (i) no conditions contained precedent related to the funding of the full amounts of the Financing other than as set forth in the Debt Commitment Letter (including the any “market flex” provisions included contained in the Fee Letter) and (ii) no other agreements to which Purchaser is a party that could limit, affect or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted impair the availability of the Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, necessary to consummate the Committed Financing at or prior to Closing on the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), expressly set forth in the Debt Commitment Letter. Assuming the satisfaction or if any portion waiver of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter Section 7.1 and the Fee Letter Section 7.2 (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms other than those conditions that by their nature are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior to satisfied at the Closing, Trimble shall use its reasonable best efforts but subject to provide the satisfaction or waiver of those conditions at the Closing), the aggregate proceeds of the Financing, together with available unrestricted Cash of the Purchaser and other sources of liquidity available to AGCOthe Purchaser, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and will be in an amount that is necessary and customarily required for financings sufficient to fund all of Purchaser’s payment obligations contemplated by this Agreement (such amount in respect of the type contemplated Financing, the “Financing Amount”). Purchaser has fully paid or caused to be paid any and all commitment fees and any other amounts required by the Debt Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing SourcesLetter, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to paid on or before the terms hereof, including obtaining customary lien release letters date of this Agreement. Each Party hereby acknowledges and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries agrees that the Financing Sources reasonably determine is required by regulatory authorities obligations of Purchaser under applicable “know your customer” and anti-money laundering rules and regulationsthis Agreement are not subject to any conditions regarding Purchaser’s, including, without limitation, its Affiliates’ or any other Person’s ability to obtain financing for the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) consummation of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputationTransactions.
Appears in 1 contract
Sources: Equity Purchase Agreement (LPL Financial Holdings Inc.)
Financing. (ai) Subject to the terms and conditions of this AgreementAgreement (including Section 6.05(a)(v)), AGCO 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 Committed Acquisition Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth described in the Commitment Letter (including any “flex” provisions in Financing Commitments and, prior to the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing TermsClosing, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, the Commitment Letter Financing Commitments or the Fee Letter (or following entry into definitive documents relating to the Committed Financingagreements with respect thereto, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Acquisition Financing (including by increasing changing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or other terms or otherwise expands, amends or modifies any of the conditions to the Committed Financing, receipt of the Acquisition Financing or other terms in a manner that would, in the case of this subclause (B), would reasonably be expected to (x) delay, impair or prevent or materially delay the Closing or the availability consummation of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Datetransactions contemplated by this Agreement, taking into account the expected timing of the Marketing Period, or (y) make, in any material respect, the timely funding of the Acquisition Financing or satisfaction of the conditions to obtaining the Acquisition Financing less likely to occur or (z) adversely impact impact, in any material respect, the ability of AGCO Purchaser to enforce its rights against the other parties to the Commitment Letter Financing Commitments or to draw upon and consummate the Acquisition Financing. Any reference in any material respect this Agreement to (the terms of any such amendment, modification or waiver not in violation of these clauses (A1) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Acquisition Financing” shall include the financing contemplated by the Commitment Letter (Financing Commitments as amended or definitive financing documents related thereto) as permitted by modified in compliance with this Section 7.15(a6.05(a)(i) to be amendedand (ii) “Financing Commitments”, modified “Equity Financing Commitment” or replaced and references to “Debt Commitment LetterLetters” shall include such document documents as permitted by amended or modified in compliance with this Section 7.15(a) to be amended, modified or replaced6.05(a)(i).
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputation
Appears in 1 contract
Sources: Purchase and Sale Agreement (NPC Operating Co B, Inc.)
Financing. (a) (i) Subject to the terms and conditions of this Agreement, AGCO each of the Parent and the Merger Sub shall use its reasonable best efforts to arrange and obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth described in the Commitment Letter (including any “flex” provisions in Financing Letters pursuant to the Fee Letter) or on such other terms thereof. The Parent and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO the Merger Sub shall not permit any amendment amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) Financing Letters if such amendment, supplement, replacement, modification or waiver (A) with respect to reduces (or could have the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces effect of reducing) the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless (x) the Committed Debt Financing or the Equity Financing is increased by a corresponding amount or the Committed Debt Financing is otherwise made available to fund such fees or original issue discountdiscount and (y) from after giving effect to any of the transactions referred to in clause (x) above, the representation and warranty set forth in Section 3.8 shall be true and correct) ; provided that contemplated any such reduction in the aggregate amount of the Financing may be replaced with an amount of new equity financing on terms no less favorable in any material respect to the Company and the Company Subsidiaries than the terms set forth in the Equity Funding Letters or additional debt financing pursuant to the Debt Commitment Letter or such definitive documents (other than Letters as may be modified in accordance with its the terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), hereof or (B) imposes new or additional conditions to the initial funding or otherwise expands, amends or modifies any of the conditions to the Committed receipt of the initial Financing, or otherwise expands, amends or modifies any other provision of the Financing Letters, in a manner that would, in the case of this subclause (B), would reasonably be expected to (x) materially delay or prevent or materially delay make less likely the Closing or the availability funding of the Committed Financing (or satisfaction of the conditions to the Financing) on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) materially adversely impact the ability of AGCO the Parent, the Merger Sub or the Company, as applicable, to enforce its rights against the other parties to the Commitment Letter in any material Financing Letters or the definitive agreements with respect thereto (provided that the terms of any such amendment, modification or waiver not in violation of these clauses (A) Parent and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO Merger Sub may amend the Debt Commitment Letter Letters to add or such definitive documents to correct typographical errors, add additional replace lenders, arrangers and lead arrangers, bookrunners, syndication agents or reallocate commitments similar entities so long as such action would not reasonably be expected to materially delay or assign or reassign titles or roles to, or between or among, any entities party theretoprevent the Closing). AGCO The Parent shall promptly deliver to Trimble the Company copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period.
(c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputation
Appears in 1 contract
Financing. (a) Subject to the terms Each of Buyers, Merger Subs and conditions of this AgreementBuyer Parent, AGCO as applicable, shall use its commercially reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, as promptly as possible, all things necessary, proper or advisable to arrange and obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and subject solely to the conditions set forth described in the Equity Commitment Letter (including any “flex” provisions in Letters and the Fee Letter) Debt Commitment Letters, as applicable, or on such other terms and conditions as are materially no less favorable, in the aggregate, to Buyers, Merger Subs and Buyer Parent, as applicable, than those set forth in the Equity Commitment Letters and the Debt Commitment Letters (provided, that the Debt Commitment Letters may be amended, supplemented, modified and replaced as permitted herein, including, in the case of the Senior Debt Commitment Letter, by virtue of the “flex” provisions contained in any related fee letter) including (i) maintaining in effect (and not cancelling any commitments under) the Commitment Letters, (ii) paying all commitment or other fees and amounts that become due and payable under or with respect to the Debt Commitment Letters or the Debt Fee Letters (provided, that the Debt Commitment Letters may be amended, supplemented, modified and replaced as permitted herein, including, by virtue of the “flex” provisions contained in any related fee letter) as they become due and payable, (iii) negotiating and entering into definitive financing agreements with respect to the Financing no less favorable to Buyers, Merger Subs and Buyer Parent, as applicable, than those contemplated by (including, with respect to the Senior Debt Commitment Letter, any “market flex” provisions related thereto) or, in the Buyers’, Merger Subs’ or Buyer Parent’s, as applicable, sole discretion, on other terms that are acceptable no less favorable to AGCO Buyers, Merger Subs and Buyer Parent, as applicable, than the terms contained in the Debt Commitment Letters so long as such other terms would not constitute a Prohibited Financing Amendment, and subject to only those conditions described in, the Commitment Letters (subject to Buyers’, Merger Subs’ or Buyer Parent’s, as applicable, right to amend, modify, supplement, restate, assign, substitute or replace the applicable Debt Commitment Letter in accordance with this Agreement) so that such agreements are in effect not later than at the Closing (such definitive financing agreements entered into in respect of the Debt Financing, the “Debt Financing Agreements”, and together with such definitive financing agreements entered into in respect of the Financing, the “Financing Agreements”) and (iv) arranging and obtaining the proceeds of the Financing (including by issuing the debt contemplated by the Junior Debt Financing) at or before Closing on the terms and conditions described in the Commitment Letters (including, with respect to the Senior Debt Commitment Letters, any “market flex” provisions related thereto) or, in the Buyers’, Merger Subs’ or Buyer Parent’s, as applicable, sole discretion, on other terms that are no less favorable to the Buyers, Merger Subs and Buyer Parent, as applicable, than the terms contained in the Debt Commitment Letters so long as such other terms would not constitute Permitted a Prohibited Financing TermsAmendment. Buyers, Merger Subs and Buyer Parent shall keep Seller Parent informed in reasonable detail of the status in respect of B▇▇▇▇▇’, Merger Subs’ and Buyer Parent’s, as applicable, efforts to obtain the Financing following written request of Seller Parent therefor.
(b) Buyers, Merger Subs and Buyer Parent, as applicable, shall give Seller Parent prompt written notice (i) of any breach or default (or any event or circumstance that, with or without notice or lapse of time or both, would reasonably be expected to result in a breach or default) by any party to the Equity Commitment Letters or the Debt Commitment Letters of which Buyers, Merger Subs or Buyer Parent, as applicable, become aware, (ii) if and when Buyers, Merger Subs or Buyer Parent, as applicable, become aware that any portion of the Equity Financing that would reduce the aggregate amount of proceeds available to the Buyers from the Equity Financing below the amount, taking into account all other sources of proceeds, necessary to fund the Required Funding Amount, (iii) of the receipt of any notice or other communication from any Person with respect to any (A) actual or potential breach, default, termination or repudiation by any party to the Equity Commitment Letters or the Debt Commitment Letters or (B) material dispute or disagreement between or among any parties to the Equity Commitment Letters or the Debt Commitment Letters (but excluding, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Debt Financing), (iv) of any termination of any of the Equity Commitment Letters or the Debt Commitment Letters (in each case of the foregoing clauses (i) through (iv), other than information to the extent that the provision thereof would violate or waive any attorney-client or other privilege, constitute attorney work product or violate or contravene any law, rule or regulation, or any obligation of confidentiality) provided, that for the avoidance of doubt no consent from Seller Parent shall be required for: (A) any amendment, replacement, supplement or modification of the Debt Commitment Letters that is limited to adding lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Debt Commitment Letters as of the date of this Agreement (including in replacement of a Lender) or (B) implementation or exercise of any “flex” provisions that do not impact the amount (other than through the operation of additional original issue discount or upfront fees) or adversely affect the availability of the Debt Financing on the Closing Date or expand the conditions to obtaining the Debt Financing on the Closing Date. If any portion of the Debt Financing becomes unavailable for any reason, other than a breach of the Junior Debt Financing Cooperation by Seller Parent or any of its Affiliates, and AGCO such portion would reduce the aggregate amount of proceeds available to the Buyers, Merger Subs or Buyer Parent, as applicable, from the Debt Financing, Buyers, Merger Subs or Buyer Parent, as applicable, shall, without limiting the obligations of Buyers, Merger Subs or Buyer Parent, as applicable, set forth in the immediately following sentence, use commercially reasonable efforts to arrange and obtain alternative financing and incur alternative financing, which shall be provided by the Debt Financing Parties or by alternative sources, and which shall be in an amount that is not less than the amount contemplated by the Debt Commitment Letters as of the date hereof and which shall be on terms no less favorable to Buyers, Merger Subs or Buyer Parent, as applicable, than those contemplated by the terms and conditions contained therein, or in the of Buyers’, Merger Subs’ or Buyer Parent’s, as applicable, sole discretion, on other terms than those in the applicable Debt Commitment Letter, in each case, which such other terms shall not permit constitute a Prohibited Financing Amendment, other than any Prohibited Financing Amendment to which Seller Parent has given its advance written consent (“Alternative Financing”), as promptly as practicable following the occurrence of such event, and the provisions of this Section 6.17 and Section 9.16 shall be applicable to the Alternative Financing, and, for the purposes of Section 4.06, this Section 6.17, Section 6.18 and the Lender Protective Provisions, all references to the Debt Financing shall be deemed to include such Alternative Financing, all references to the Debt Commitment Letters, the Debt Financing, the Financing, the Debt Financing Agreements and the Financing Agreements shall include the applicable documents for the Alternative Financing and all references to the Debt Financing Parties shall include the persons providing or arranging the Alternative Financing. Buyers shall deliver to Seller Parent true, correct and complete copies of all Contracts or other arrangements pursuant to which any financing source shall have committed to provide any portion of the Alternative Financing; provided, that, the copy of a fee letter in connection with the Senior Debt Commitment Letter so required to be delivered may be redacted to omit fee amounts, economic terms, any provisions relating to “flex” provisions that do not impact the amount (other than through the operation of additional original issue discount or upfront fees) or adversely affect the availability of the Debt Financing on the Closing Date or expand the conditions to obtaining the Debt Financing on the Closing Date. Buyer shall (A) comply in all material respects with the Commitment Letters, (B) enforce in all material respects their rights under the Commitment Letters (provided, that, notwithstanding anything to the contrary in this Agreement, Buyers, Merger Subs and Buyer Parent, as applicable, shall not be required to initiate, prosecute or maintain any claim, action, demand, grievance, arbitration or similar Proceeding against any Person) and (C) not permit, without the prior written consent of Seller Parent, any amendment or modification to be made to, or any waiver of any provision or remedy under, the any Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver would (A1) with respect reduce the aggregate amount of proceeds from (i) the Debt Financing below the amount contemplated by the Debt Commitment Letters as of the date hereof or (ii) the Equity Financing below, after taking into account all other sources of proceeds, the amount necessary to fund the Commitment Letter or the Fee Letter or such definitive documentsRequired Funding Amount, as applicable, reduces (2) impose new or additional, or otherwise adversely modify any, conditions precedent to the aggregate amount receipt of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B3) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially impair or delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendmentBuyers, modification or waiver not in violation of these clauses (A) Merger Subs and (B)Buyer Parent, the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
(b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (A) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (x) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to fundingapplicable, to consummate the Committed Financing at or prior to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing Transaction on the Closing Date (the limitations set forth in clauses (1) through (3), the “Committed Prohibited Financing SourcesAmendments”) ), unless Seller Parent has given its advance written consent. Buyers, Merger Subs and (D) enforce its rights under the Buyer Parent, as applicable, shall promptly deliver to Seller Parent true, complete and correct copies of any material amendment, restatement, amendment and restatement, replacement, supplement, modification, waiver of consent to any Commitment Letter (subject to any redaction of a fee letter consistent with the redaction of any Debt Fee Letter provided on the date hereof). Notwithstanding anything contained in this Section 6.17 or anything else in this Agreement, in no event shall the commercially reasonable efforts of Buyers, Merger Subs or Buyer Parent, as applicable, be deemed or construed to require Buyers, Merger Subs or Buyer Parent, as applicable, to, and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO Buyers, Merger Subs or Buyer Parent, as applicable, shall not be required to consummate to, (i) pay any fees in excess of those contemplated by the Available Debt Financing before the final day as of the Marketing Perioddate hereof, (ii) agree to conditionality or economic terms of the Debt Financing that are less favorable than those contemplated by the Debt Commitment Letters or Debt Fee Letters (including any flex provisions therein) as of the date hereof, or (iii) seek equity financing from any source other than those counterparties to the Equity Commitment Letters.
(c) AGCO shall give Trimble prompt notice (x) Without limiting Section 9.16(b), each of Buyers, Merger Subs and Buyer Parent acknowledges and agrees that the obtaining of the Financing, or any breach or default by any party Alternative Financing, is not a condition to the Commitment Letter or definitive agreements relating Closing and reaffirm their respective obligations to consummate the Committed Financing transactions contemplated by this Agreement irrespective and independently of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing or any Alternative Financing, (y) subject to fulfillment or waiver of the receipt conditions set forth in Section 7.01 and Section 7.02.
(d) The provisions of any written notice or other communicationthis Section 6.17 shall apply to each Merger Sub, mutatis mutandis. Each of Buyer Parent and Buyers shall take all actions necessary to (i) cause each Merger Sub to perform promptly its obligations under this Agreement and (ii) cause (A) US Merger Sub to consummate the Merger and (B) CA AmalCo Sub to consummate the Amalgamation, in each case from any Committed Financing Source with respect to any actual or potential material breachcase, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative FinancingAgreement.
(d) Prior to the Closing, Trimble shall use its reasonable best efforts to provide to AGCO, and shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include:
(i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed;
(ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant;
(iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business;
(iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings;
(v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under any loan agreement and related documents, unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), (C) incur any other liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or (D) be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇▇’▇ or any of its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or any Laws or (y) result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any Contract to which Trimble or any of its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable use of its and its Subsidiaries’ trademarks and logos in connection with the Available Financing; provided, however, that such trademarks and logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Trimble or any of its Subsidiaries or the reputation
Appears in 1 contract