Senior Notes. (i) Parent will be permitted to commence and conduct, in accordance with the terms of that certain indenture, dated as of May 18, 2017 (the “Indenture”) by and among the Company, the subsidiary guarantors party thereto and Wilmington Trust, National Association, as trustee (the “Trustee”), one or more offers to purchase, including any “Change of Control Offer” (as such term is defined in the Indenture) or any tender offer, or any exchange offer, and to conduct a consent solicitation, if any (each, a “Debt Offer” and collectively, the “Debt Offers”), with respect to any or all of the outstanding aggregate principal amount of the 6.625% Senior Notes due 2022 issued by the Company prior to the date hereof pursuant to the Indenture (the “Senior Notes”) identified by Parent to the Company in writing prior to, on, or after the date hereof on terms that are acceptable to Parent; provided, that any such Debt Offer shall be consummated using funds provided by Parent. Parent shall not be permitted to commence any applicable Debt Offer until Parent shall have provided the Company with the necessary offer to purchase, offer to exchange, consent solicitation statement, letter of transmittal and press release, if any, in connection therewith and each other document relevant to such transaction that will be distributed by Parent to holders of the Senior Notes in the applicable Debt Offer (collectively, the “Debt Offer Documents”) a period of time in advance of commencing the applicable Debt Offer to allow the Company and its counsel a reasonable opportunity to review and comment on the related Debt Offer Documents. Parent will reasonably consult with the Company regarding the material terms and conditions of any Debt Offer (other than financial terms), including the timing and commencement of any Debt Offer and any relevant tender or consent deadlines. The closing (or, if applicable, effectiveness) of the Debt Offers shall be expressly conditioned on the occurrence of the Closing, and the Company will use reasonable best efforts to cooperate with Parent, at Parent’s request, to facilitate the initial settlement of the Debt Offers by Parent on the Closing Date; provided, that the consummation of a Debt Offer with respect to the Senior Notes shall not be a condition to Closing. The Debt Offers shall be conducted in compliance with (and the terms of any Debt Offer shall comply with) the Indenture and SEC Regulatory Requirements, and the Company shall not be required to cooperate with respect to any Debt Offer that is not in compliance with the Senior Notes, the Indenture and SEC Regulatory Requirements. Subject to Section 5.13(b), at Parent’s expense, the Company shall, and shall cause the Company Subsidiaries and their respective representatives to, in each case, use their reasonable best efforts to provide all cooperation reasonably requested by Parent in connection with the Debt Offer; provided that prior to the Closing, neither the Company nor any of the Company Subsidiaries, nor counsel for the Company shall be required to furnish any officer’s certificates, legal opinions or negative assurance letters in connection with the Debt Offers (other than, in connection with the execution of a supplemental indenture relating to any consent solicitation of the type described in clause (ii) below, the Company delivering customary officer’s certificates, and using reasonable best efforts to cause counsel for the Company to deliver customary legal opinions, respectively, to the trustee under the Indenture, to the extent such certificates and opinions would not (in the opinion of the Company, its counsel and the Trustee) conflict with applicable Laws, the terms of the Senior Notes or the Indenture and would be accurate in light of the facts and circumstances at the time delivered) or execute any other instruments or agreements in connection therewith other than the supplemental indenture described in clause (ii) below. To the extent that the provisions of SEC Regulatory Requirements conflict with this Section 5.14(b)(i), Parent and the Company shall comply with SEC Regulatory Requirements and shall not be deemed to have breached their obligations under this Agreement by such compliance. Notwithstanding the foregoing and for the avoidance of doubt, in no event shall the Company or its legal counsel be required to give an opinion with respect to the Financing or any other financing of Parent or Merger Sub. (ii) To the extent any Debt Offer includes a consent solicitation, then subject to the receipt of the requisite consents, the Company and the applicable Company Subsidiaries shall execute a supplemental indenture to the Indenture in accordance with the terms of the Indenture, amending the terms and provisions of the Indenture as described in the relevant Debt Offer Documents as reasonably requested by Parent, which supplemental indenture shall become operative no earlier than the Effective Time; provided, however, that in no event shall the Company or any of its officers, directors or other representatives have any obligation to authorize, adopt or execute any amendments or other agreement that is not permitted under applicable Law, the terms of the Senior Notes or the Indenture or would become operative prior to the Effective Time.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Taylor Morrison Home Corp), Merger Agreement (AV Homes, Inc.)
Senior Notes. Upon written request of Parent, the Company shall, and shall cause the Company Subsidiaries to, and shall use commercially reasonable efforts to cause its and their Representatives to, as applicable, (i) deliver to the trustee under each Senior Notes Indenture at or prior to the Effective Time, a notice of optional redemption for up to all of the outstanding aggregate principal amount of any series of Senior Notes outstanding and identified by Parent, pursuant to the redemption provisions of the applicable Senior Notes Indenture and the Senior Notes, (ii) facilitate Parent will be permitted to commence and conduct, in accordance with the terms of that certain indenture, dated as of May 18, 2017 (the “Indenture”) by and among the Company, the subsidiary guarantors party thereto and Wilmington Trust, National Association, as trustee (the “Trustee”), or any Parent Subsidiary completing one or more exchange offers to purchase, including any “Change of Control Offer” (as such term is defined in the Indenture) or any tender offer, or any exchange offer, and to conduct a consent solicitation, if any (each, a “Debt Offer” and collectively, the “Debt Offers”), solicitations with respect to any or all of the outstanding aggregate principal amount Senior Notes on terms acceptable to Parent and execute one or more supplemental indentures in connection therewith (which supplemental indentures shall become effective upon execution but shall not become operative until the Effective Time), and (iii) provide assistance reasonably requested by Parent to facilitate (A) the redemption of the 6.625% related Senior Notes due 2022 issued Indenture identified by Parent or the Company prior to satisfaction and discharge of any series of Senior Notes identified by Parent at the date hereof Effective Time pursuant to the redemption and satisfaction and discharge provisions, respectively, and other applicable provisions of the applicable Senior Notes Indenture (the each, a “Discharge”), and (B) any exchange offer or consent solicitation initiated by Parent or any Parent Subsidiary in connection with any Senior Notes”) identified , and, in each case, take any other actions reasonably requested by Parent that are customary or necessary in connection therewith, including the execution and delivery by the Company, the Company Subsidiaries or their Representatives (as applicable) of customary officers’ certificates and legal opinions, respectively, to the trustee under the applicable Senior Notes Indenture, to the extent such certificates and opinions are required thereby or reasonably requested by the applicable trustee, and using reasonable best efforts to cause the trustee under the applicable Senior Notes Indenture to enter into any supplemental indentures in connection with any exchange offer or consent solicitation initiated by Parent or any Parent Subsidiary. In the event that Parent requests the Company in writing prior toto deliver a notice of optional redemption to the trustee under each Senior Notes Indenture, on, the Company (or after the date hereof on terms that are acceptable to Parent; provided, that applicable Company Subsidiary) shall deliver a copy of any such Debt Offer shall be consummated using funds provided by Parent. notice or other document to Parent shall not be permitted at least three (3) business days prior to commence any applicable Debt Offer until Parent shall have provided delivering or entering into such notice or other document and the Company with shall include any proposed changes thereon that Parent reasonably requests. Notwithstanding anything herein to the necessary offer to purchase, offer to exchange, consent solicitation statement, letter of transmittal and press release, if anycontrary, in connection therewith no event shall this Section 7.14(b) require the Company or any of the Company Subsidiaries to cause any Discharge to be effective unless and each other document relevant until the Effective Time has occurred and Parent has provided or caused to such transaction that will be distributed by Parent provided to holders of the trustee under the Senior Notes Indentures funds (or Parent has directed the Company or any of the Company’s Subsidiaries to use funds on their balance sheet) sufficient to effect any such Discharge in compliance with the provisions of such applicable Debt Offer (collectivelySenior Notes Indenture. In the event that Parent or any Parent Subsidiary initiates any exchange offer or consent solicitation with respect to any Senior Notes, the “Debt Offer Documents”) a period of time in advance of commencing the applicable Debt Offer to allow Parent shall give the Company and its counsel a reasonable opportunity to review and comment on any disclosure in respect of the Company proposed to be included in any offering or marketing documents related Debt Offer Documentsto such exchange offer or consent solicitation, including all amendments and supplements thereto, prior to the first use of such documents or disseminating them to prospective investors, and shall consider any comments proposed by the Company in good faith. Notwithstanding anything herein to the contrary, in no event shall this Section 7.14(b) require the Company or any of the Company Subsidiaries to cause any supplemental indenture to become operative unless and until the Effective Time has occurred and Parent will reasonably consult or a Parent Subsidiary has provided or caused to be provided to the trustee under the Senior Notes Indentures funds (or Parent has directed the Company or any of the Company’s Subsidiaries to use funds on their balance sheet) sufficient to pay any applicable fees owed to the holders of any Senior Notes in compliance with the Company regarding the material terms and conditions of any Debt Offer (other than financial terms), including the timing and commencement of any Debt Offer and any relevant tender applicable exchange offer or consent deadlines. The closing (or, if applicable, effectiveness) of the Debt Offers shall be expressly conditioned on the occurrence of the Closing, and the Company will use reasonable best efforts to cooperate with Parent, at Parent’s request, to facilitate the initial settlement of the Debt Offers solicitation initiated by Parent on the Closing Date; provided, that the consummation of a Debt Offer with respect to the Senior Notes shall not be a condition to Closing. The Debt Offers shall be conducted in compliance with (and the terms of or any Debt Offer shall comply with) the Indenture and SEC Regulatory Requirements, and the Company shall not be required to cooperate Parent Subsidiary with respect to any Debt Offer that is not in compliance with the Senior Notes, the Indenture and SEC Regulatory Requirements. Subject to Section 5.13(b), at Parent’s expense, the Company shall, and shall cause the Company Subsidiaries and their respective representatives to, in each case, use their reasonable best efforts to provide all cooperation reasonably requested by Parent in connection with the Debt Offer; provided that prior to the Closing, neither the Company nor any of the Company Subsidiaries, nor counsel for the Company shall be required to furnish any officer’s certificates, legal opinions or negative assurance letters in connection with the Debt Offers (other than, in connection with the execution of a supplemental indenture relating to any consent solicitation of the type described in clause (ii) below, the Company delivering customary officer’s certificates, and using reasonable best efforts to cause counsel for the Company to deliver customary legal opinions, respectively, to the trustee under the Indenture, to the extent such certificates and opinions would not (in the opinion of the Company, its counsel and the Trustee) conflict with applicable Laws, the terms of the Senior Notes or the Indenture and would be accurate in light of the facts and circumstances at the time delivered) or execute any other instruments or agreements in connection therewith other than the supplemental indenture described in clause (ii) below. To the extent that the provisions of SEC Regulatory Requirements conflict with this Section 5.14(b)(i), Parent and the Company shall comply with SEC Regulatory Requirements and shall not be deemed to have breached their obligations under this Agreement by such compliance. Notwithstanding the foregoing and for the avoidance of doubt, in no event shall the Company or its legal counsel be required to give an opinion with respect to the Financing or any other financing of Parent or Merger Sub.
(ii) To the extent any Debt Offer includes a consent solicitation, then subject to the receipt of the requisite consents, the Company and the applicable Company Subsidiaries shall execute a supplemental indenture to the Indenture in accordance with the terms of the Indenture, amending the terms and provisions of the Indenture as described in the relevant Debt Offer Documents as reasonably requested by Parent, which supplemental indenture shall become operative no earlier than the Effective Time; provided, however, that in no event shall the Company or any of its officers, directors or other representatives have any obligation to authorize, adopt or execute any amendments or other agreement that is not permitted under applicable Law, the terms of the Senior Notes or the Indenture or would become operative prior to the Effective Time.
Appears in 2 contracts
Sources: Merger Agreement (CRH Public LTD Co), Merger Agreement (Arcosa, Inc.)
Senior Notes. Upon written request of Parent, the Partnership shall, and shall cause all applicable Group Members to, and shall use commercially reasonable efforts to cause its and their Representatives to, as applicable, (i) Parent will be permitted deliver to commence and conduct, in accordance with the terms of that certain indenture, dated as of May 18, 2017 (trustee under the “Indenture”) by and among Senior Notes Indenture at or prior to the Company, the subsidiary guarantors party thereto and Wilmington Trust, National Association, as trustee (the “Trustee”), one or more offers to purchase, including any “Change of Control Offer” (as such term is defined in the Indenture) or any tender offer, or any exchange offer, and to conduct a consent solicitation, if any (eachEffective Time, a “Debt Offer” and collectively, the “Debt Offers”), with respect notice of optional redemption for up to any or all of the outstanding aggregate principal amount of the 6.625% Senior Notes due 2022 issued by the Company prior to the date hereof Notes, pursuant to the Indenture (the “Senior Notes”) identified by Parent to the Company in writing prior to, on, or after the date hereof on terms that are acceptable to Parent; provided, that any such Debt Offer shall be consummated using funds provided by Parent. Parent shall not be permitted to commence any applicable Debt Offer until Parent shall have provided the Company with the necessary offer to purchase, offer to exchange, consent solicitation statement, letter of transmittal and press release, if any, in connection therewith and each other document relevant to such transaction that will be distributed by Parent to holders redemption provisions of the Senior Notes in Indenture and the applicable Debt Offer (collectivelySenior Notes, the “Debt Offer Documents”) a period of time in advance of commencing the applicable Debt Offer to allow the Company and its counsel a reasonable opportunity to review and comment on the related Debt Offer Documents. Parent will reasonably consult with the Company regarding the material terms and conditions of any Debt Offer (other than financial terms), including the timing and commencement of any Debt Offer and any relevant tender or consent deadlines. The closing (or, if applicable, effectiveness) of the Debt Offers which notice shall be expressly conditioned on subject to the occurrence of the ClosingEffective Time, and (ii) provide assistance reasonably requested by the Company will use reasonable best efforts to cooperate with Parent, at Parent’s request, Parent to facilitate the initial settlement redemption of the Debt Offers by Parent on the Closing Date; provided, that the consummation of a Debt Offer with respect to the Senior Notes shall not be a condition to Closing. The Debt Offers shall be conducted in compliance with (Indenture identified by the Parent and the terms satisfaction and discharge of any Debt Offer shall comply with) the Indenture Senior Notes identified by the Parent at the Effective Time pursuant to the redemption and SEC Regulatory Requirementssatisfaction and discharge provisions, respectively, and the Company shall not be required to cooperate with respect to any Debt Offer that is not in compliance with other applicable provisions of the Senior NotesNotes Indenture (each, the Indenture and SEC Regulatory Requirements. Subject to Section 5.13(b), at Parent’s expense, the Company shall, and shall cause the Company Subsidiaries and their respective representatives toa “Discharge”) and, in each case, use their reasonable best efforts to provide all cooperation take any other actions reasonably requested by Parent that are customary or necessary in connection with the Debt Offer; provided that prior to the Closingtherewith, neither the Company nor any of the Company Subsidiaries, nor counsel for the Company shall be required to furnish any officer’s certificates, legal opinions or negative assurance letters in connection with the Debt Offers (other than, in connection with including the execution and delivery by the Partnership, all applicable Group Members or their Representatives (as applicable) of a supplemental indenture relating to any consent solicitation of the type described in clause (ii) below, the Company delivering customary officer’s certificates, officers’ certificates and using reasonable best efforts to cause counsel for the Company to deliver customary legal opinions, respectively, to the trustee under the Senior Notes Indenture, to the extent such certificates and opinions would not (in the opinion of the Company, its counsel and are required thereby or reasonably requested by the Trustee) conflict with applicable Laws, the terms of the Senior Notes or the Indenture and would be accurate in light of the facts and circumstances at the time delivered) or execute any other instruments or agreements in connection therewith other than the supplemental indenture described in clause (ii) below. To the extent that the provisions of SEC Regulatory Requirements conflict with this Section 5.14(b)(i), Parent and the Company shall comply with SEC Regulatory Requirements and shall not be deemed to have breached their obligations under this Agreement by such compliance. Notwithstanding anything herein to the foregoing and for the avoidance of doubtcontrary, in no event shall this Section 6.16(b) require the Company or its legal counsel be required to give an opinion with respect to the Financing or any other financing of Parent or Merger Sub.
(ii) To the extent any Debt Offer includes a consent solicitation, then subject to the receipt of the requisite consents, the Company and the applicable Company Subsidiaries shall execute a supplemental indenture to the Indenture in accordance with the terms of the Indenture, amending the terms and provisions of the Indenture as described in the relevant Debt Offer Documents as reasonably requested by Parent, which supplemental indenture shall become operative no earlier than the Effective Time; provided, however, that in no event shall the Company Partnership or any of its officers, directors the Group Members to cause any redemption or other representatives have Discharge to be effective unless and until the Effective Time has occurred and Parent has provided or caused to be provided to the Trustee under the Senior Notes Indenture funds (or Parent has directed the Partnership or any obligation of the Partnership’s Subsidiaries to authorize, adopt use funds on their balance sheet) sufficient to effect any such redemption or execute any amendments or other agreement that is not permitted under applicable Law, Discharge in compliance with the terms provisions of the Senior Notes or the Indenture or would become operative prior to the Effective TimeIndenture.
Appears in 2 contracts
Sources: Merger Agreement (Rattler Midstream Lp), Merger Agreement (Rattler Midstream Lp)
Senior Notes. (i) Parent will be permitted to commence and conduct, in accordance with the terms of that certain indenturethe 2023 Senior Notes Indenture, dated as of May 18the 2025 Senior Notes Indenture and the 2027 Senior Notes Indenture (collectively, 2017 (the “IndentureIndentures”) by and among the Company, the subsidiary guarantors party thereto and Wilmington Trust, National Association), as trustee (the “Trustee”)applicable, one or more offers to purchase, including any “Change of Control Offer” (as such term is defined in the applicable Indenture) or and any tender offer, or any exchange offer, and to conduct a consent solicitation, if any (each, a “Debt Offer” and collectively, the “Debt Offers”), with respect to any or all of the outstanding aggregate principal amount of the 6.625% 2023 Senior Notes, the 2025 Senior Notes due 2022 issued by and the Company prior to the date hereof pursuant to the Indenture 2027 Senior Notes (collectively, the “Senior Notes”) identified by Parent to the Company in writing prior to, on, or after the date hereof on terms that are acceptable to Parent; provided, that any such Debt Offer shall be (A) in compliance with applicable Law, the terms of the Indentures and any other rights of any holder of the Senior Notes and the terms of this Section 5.17(b), (B) at the sole expense of Parent, (C) consummated using funds provided by Parent. Parent shall not be permitted to commence any applicable Debt Offer until Parent shall have provided the Company with the necessary offer to purchase, offer to exchange, consent solicitation statement, letter of transmittal and press release, if any, in connection therewith and each other document relevant to such transaction that will be distributed by Parent to holders of the applicable Senior Notes in the applicable Debt Offer (collectively, the “Debt Offer Documents”) a period of time in advance of commencing the applicable Debt Offer to allow the Company and its counsel a reasonable opportunity to review and comment on the related Debt Offer DocumentsDocuments (in each case, at Parent’s sole expense), which comments shall be considered by Parent in good faith. Parent will reasonably consult with the Company regarding the material terms and conditions of any Debt Offer (other than financial terms), including the timing and commencement of any Debt Offer and any relevant tender or consent deadlines. The Parent shall expressly condition the closing (or, if applicable, effectiveness) of any of the Debt Offers shall be expressly conditioned on the occurrence of the Closing, and the Company will use commercially reasonable best efforts to cooperate with Parent, at Parent’s requestrequest and sole expense, to facilitate the initial settlement of the Debt Offers by Parent on the Closing Date; provided, that the consummation of a Debt Offer with respect to the any series of Senior Notes shall not be a condition to Closing. The Parent shall conduct any Debt Offers shall be conducted Offer in compliance with (and shall cause the terms of any Debt Offer shall comply with) any applicable provisions of the Indenture Indentures and with applicable Law, including the SEC Regulatory Requirements, and the Company shall not be required to cooperate with respect to any Debt Offer that is not in compliance with the applicable Senior Notes, the applicable Indenture and SEC Regulatory Requirements. Subject to Section 5.13(b5.17(b), at Parent’s expense, the Company shall, and shall cause the Company Subsidiaries and their respective representatives to, in each case, use their reasonable best efforts to provide all cooperation reasonably requested by Parent in connection with the Debt Offer; provided that prior to the Closing, neither the Company nor any of the Company Subsidiaries, nor counsel for the Company shall be required to furnish any officer’s certificates, legal opinions or negative assurance letters in connection with the Debt Offers (other than, in connection with the execution of a supplemental indenture relating to any consent solicitation of the type described in clause (ii) below, the Company delivering customary officer’s certificates, and using reasonable best efforts to cause counsel for the Company to deliver customary legal opinions, respectively, to the trustee under the Indentureapplicable Indentures, to the extent such certificates and opinions would not (in the opinion of the Company, its counsel and the Trusteeapplicable trustee) conflict with applicable Laws, the applicable terms of the Senior Notes or the Indenture Indentures and would be accurate in light of the facts and circumstances at the time delivered) or execute any other instruments or agreements in connection therewith other than the supplemental indenture described in clause (ii) below. To the extent that the provisions of SEC Regulatory Requirements conflict with this Section 5.14(b)(i5.17(b)(i), Parent and the Company shall comply with SEC Regulatory Requirements and shall not be deemed to have breached their obligations under this Agreement by such compliance. Notwithstanding the foregoing and for the avoidance of doubt, in no event shall the Company or its legal counsel be required to give an opinion with respect to the Financing or any other financing of Parent or Merger Sub.
(ii) To the extent any Debt Offer includes a consent solicitation, then subject to the receipt of the requisite consents, the Company and the applicable Company Subsidiaries shall execute a supplemental indenture to the each applicable Indenture in accordance with the terms of the each such Indenture, amending the terms and provisions of the each such Indenture as described in the relevant Debt Offer Documents as reasonably requested by Parent (and at Parent’s sole expense), which supplemental indenture shall become operative no earlier than the Effective Time; provided, however, that in no event shall the Company or any of its officers, directors or other representatives have any obligation to authorize, adopt or execute any amendments or other agreement that is not permitted under applicable Law, the terms of the applicable Senior Notes or the Indenture applicable Indentures or would become operative prior to the Effective Time.
(iii) If requested by Parent in writing, in lieu of or in addition to Parent commencing or closing any Debt Offer for any series of Senior Notes, the Company shall use its reasonable best efforts, to the extent permitted by such series of Senior Notes and the applicable Indenture, to (A) issue a notice of redemption for all of the outstanding aggregate principal amount of such series of Senior Notes, pursuant to the redemption provisions of the applicable Indenture, which notice of redemption shall either be issued substantially simultaneously with the Effective Time or be expressly conditioned on the occurrence of the Closing and (B) take any other actions prior to, at or after the Effective Time reasonably requested by Parent to facilitate the redemption and satisfaction and discharge of such series of Senior Notes pursuant to the redemption and the satisfaction and discharge provisions of the applicable Indenture and the other provisions of such Indenture applicable thereto; provided, that prior to the Company being required under clause (A) above to issue any notice of redemption to be issued substantially simultaneously with the Effective Time, Parent shall have, or shall have caused to be, deposited with the trustee under the applicable Indenture sufficient funds to effect such redemption and satisfaction and discharge. If a conditional notice of redemption is given, Parent shall ensure that at the Effective Time, so long as the applicable conditions of such redemption are satisfied, the Company has all funds necessary in connection with any such redemption and satisfaction and discharge. The redemption and satisfaction and discharge of any series of Senior Notes pursuant to the preceding sentence are referred to collectively as the “Discharge” of such series of Senior Notes. The Company shall, and shall cause the Company Subsidiaries and the Company Representatives to, in each case, use their reasonable best efforts, at Parent’s sole expense, to provide all cooperation reasonably requested by Parent in connection with the Discharge of any series of Senior Notes identified to the Company by Parent in writing at any time.
(iv) Notwithstanding anything set forth in this Section 5.17, neither compliance by Parent and/or Merger Sub with this Section 5.17 nor any failure to consummate any Debt Offer or Discharge prior to the Closing shall relieve Parent or Merger Sub of their obligations to consummate the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (William Lyon Homes), Merger Agreement (Taylor Morrison Home Corp)
Senior Notes. (i) Parent will Notwithstanding anything to the contrary in this Agreement, prior to the First Merger Effective Time, the Company shall give any notices and use its reasonable best efforts to take all other actions specifically required to be permitted to commence and conduct, in accordance with taken under the terms of that certain indenturethe Indenture and the Senior Notes as a result of the consummation of the Transactions, dated as of May 18which actions shall include, 2017 (the “Indenture”) by and among the Companywithout limitation, the subsidiary guarantors party thereto Company (or its Subsidiaries) using its reasonable best efforts to (i) give any notices that may be required in connection with the Mergers and Wilmington Trustthe other Transactions contemplated by this Agreement prior to the First Merger Effective Time, National Association(ii) prepare any supplemental indentures required in connection with the Mergers and the other Transactions contemplated by this Agreement and the consummation thereof to be executed and delivered to the Trustee at or prior to the First Merger Effective Time, in form and substance reasonably satisfactory to the Trustee, and (iii) deliver any opinions of counsel required to be delivered prior to the First Merger Effective Time and any officer’s certificates or other documents or instruments, as trustee (may be necessary to comply with all of the “Trustee”), one or more offers to purchase, including any “Change terms and conditions of Control Offer” (as such term is defined the Indenture in connection with the Mergers and the other Transactions contemplated by this Agreement; provided that opinions of counsel required by the Indenture, as may be necessary to comply with all of the terms and conditions of the Indenture in connection with the Mergers and the other Transactions contemplated by this Agreement shall be delivered by Parent and its counsel to the extent required to be delivered at or after the First Merger Effective Time. The foregoing notwithstanding, neither the Company nor any of its Subsidiaries shall be required to execute and deliver any document or instrument (or cause any document or instrument to be executed or delivered) (i) that would be inaccurate in light of the facts and circumstances at the time delivered or (ii) not conditioned on or delivered substantially concurrently with the occurrence of the First Merger Effective Time.
(ii) The Company shall provide Parent and its counsel reasonable opportunity to review and comment on any tender offernotices, certificates, supplemental indentures, legal opinions, officer’s certificates or any exchange offerother documents or instruments required to be delivered pursuant to or in connection with the Indenture or the Senior Notes in connection with the Mergers and the other Transactions contemplated by this Agreement prior to the dispatch or making thereof, and the Company shall promptly respond to conduct a consent solicitationany reasonable questions from, if and consider in good faith any reasonable comments made by, Parent or its counsel with respect thereto prior to the dispatch or making thereof.
(each, a “Debt Offer” and collectivelyiii) If requested by Parent in writing at least seven (7) Business Days in advance of the due date for such notice under the Indenture, the “Debt Offers”)Company shall, with respect to any the extent permitted by the Senior Notes and the Indenture, issue on the Closing Date (or on such earlier time as Parent may request) a notice of optional redemption for all of the outstanding aggregate principal amount of the 6.625% Senior Notes due 2022 issued by the Company prior to the date hereof pursuant to the optional redemption provisions of the Indenture (the “Senior Notes”) identified by Parent to the Company in writing prior to, on, or after the date hereof on terms that are acceptable to Parent; provided, that any such Debt Offer shall be consummated using funds provided by Parent. Parent shall not be permitted to commence any applicable Debt Offer until Parent shall have provided the Company with the necessary offer to purchase, offer to exchange, consent solicitation statement, letter which notice of transmittal and press release, if any, in connection therewith and each other document relevant to such transaction that will be distributed by Parent to holders of the Senior Notes in the applicable Debt Offer (collectively, the “Debt Offer Documents”) a period of time in advance of commencing the applicable Debt Offer to allow the Company and its counsel a reasonable opportunity to review and comment on the related Debt Offer Documents. Parent will reasonably consult with the Company regarding the material terms and conditions of any Debt Offer (other than financial terms), including the timing and commencement of any Debt Offer and any relevant tender or consent deadlines. The closing (or, if applicable, effectiveness) of the Debt Offers shall be expressly conditioned on the occurrence of the Closing, and the Company will use reasonable best efforts to cooperate with Parentoptional redemption may be, at Parent’s requestrequest and to the extent permitted by the Indenture, to facilitate the initial settlement of the Debt Offers by Parent conditional on the Closing Date; provided, that the consummation of a Debt Offer with respect the Merger or the other Transactions, including subsequent supplemental notices of optional redemption to the Senior Notes shall not be a condition extend necessary to Closing. The Debt Offers shall be conducted extend the redemption date set forth in compliance with the original notice to match the ultimate Closing Date) (and the terms such redemption of any Debt Offer shall comply with) the Indenture and SEC Regulatory Requirements, and the Company shall not be required to cooperate with respect to any Debt Offer that is not in compliance with the Senior Notes, the Indenture and SEC Regulatory Requirements. Subject to Section 5.13(b“Senior Notes Redemption”), at Parent’s expense, the Company shall, and shall cause the Company Subsidiaries and their respective representatives to, in each case, use their reasonable best efforts to provide all cooperation reasonably requested by Parent ; provided that in connection with the Debt Offer; provided that prior to the Closingdelivery of any such notice of optional redemption, neither the Company nor any of the Company Subsidiaries, nor counsel for the Company shall be required to furnish any officer’s certificates, legal opinions or negative assurance letters in connection with the Debt Offers (other than, in connection with the execution of a supplemental indenture relating to any consent solicitation of the type described in clause (ii) below, the Company delivering customary officer’s certificates, deliver and using shall use reasonable best efforts to cause counsel for the Company to deliver deliver, customary officer’s certificates and customary legal opinions, respectively, to the trustee under the IndentureTrustee, to the extent such certificates and opinions would not (in the opinion of the Company, its counsel and the Trustee) conflict with applicable Laws, are required by the terms of the Senior Notes or the Indenture and would be accurate in light of the facts and circumstances at the time deliveredIndenture; it being understood that (i) or execute any other instruments or agreements in connection therewith other than the supplemental indenture described in clause (ii) below. To the extent that the provisions of SEC Regulatory Requirements conflict with this Section 5.14(b)(i), Parent and the Company shall comply with SEC Regulatory Requirements and shall not be deemed to have breached their obligations under this Agreement by such compliance. Notwithstanding the foregoing and for the avoidance of doubt, in no event shall the Company or its legal counsel be required to give an opinion with respect prepare or commence any documentation or action for any Senior Notes Redemption that will result in such redemption being effective prior to the Financing First Merger Effective Time or incur any other financing of cost or expense in connection with such Senior Notes Redemption unless Parent or Merger Sub.
promptly reimburses the Company for all costs and expenses incurred by the Company in connection therewith and (ii) To any opinions of counsel required by the extent any Debt Offer includes a consent solicitation, then subject Indenture as may be necessary to the receipt comply with all of the requisite consents, the Company terms and the applicable Company Subsidiaries shall execute a supplemental indenture to conditions of the Indenture in accordance connection with the terms of the Indenture, amending the terms and provisions of the Indenture as described in the relevant Debt Offer Documents as reasonably requested by Parent, which supplemental indenture shall become operative no earlier than the Effective Time; provided, however, that in no event shall the Company or any of its officers, directors or other representatives have any obligation to authorize, adopt or execute any amendments or other agreement that is not permitted under applicable Law, the terms of the Senior Notes or the Indenture or would become operative prior Redemption shall be delivered by Parent and its counsel to the extent required to be delivered at or after the First Merger Effective Time.
Appears in 2 contracts
Sources: Merger Agreement (Ritchie Bros Auctioneers Inc), Merger Agreement (IAA, Inc.)
Senior Notes. (i) Parent BidCo will be permitted to commence and conduct, in accordance with the terms of that certain indenture, dated as of May 18, 2017 (the “Indenture”) by and among the Company, the subsidiary guarantors party thereto and Wilmington Trust, National Association, as trustee (the “Trustee”), conduct one or more offers to purchase, including any “Change of Control Offer” (as such term is defined in the Indenture) or and/or any tender offer, or any exchange offer, offer and to conduct a consent solicitation, if any (each, a “Debt Offer” and and, collectively, the “Debt Offers”), with respect to any or all of the outstanding aggregate principal amount of the 6.625% Senior Notes due 2022 issued by the Company prior to the date hereof pursuant to the Indenture (the “Senior Notes”) identified by Parent to the Company in writing prior to, on, or after the date hereof on terms that are acceptable to ParentBidCo; provided, that any such Debt Offer shall be is consummated using funds provided by ParentBidCo and at BidCo’s expense. Parent BidCo shall not be permitted to commence any applicable Debt Offer until Parent shall have provided provide the Company with the necessary offer to purchase, offer to exchange, consent solicitation statement, letter of transmittal and press release, if any, purchase or other related documents in connection therewith and each other document relevant to such transaction that will be distributed by Parent to holders of with the Senior Notes in the applicable Debt Offer (collectively, the “Debt Offer Documents”) a reasonable period of time in advance of commencing the applicable Debt Offer to allow the Company and its counsel a reasonable opportunity to review and comment on the related Debt Offer Documents. Parent will reasonably consult with the Company regarding the material terms and conditions of any Debt Offer (other than financial terms), including the timing and commencement of any Debt Offer and any relevant tender or consent deadlines. The closing (or, if applicable, effectiveness) of the Debt Offers shall be expressly conditioned on the occurrence of the Closing, and the Company will use reasonable best efforts to cooperate with Parent, at Parent’s request, to facilitate the initial settlement of the Debt Offers by Parent on the Closing Date; provided, that the consummation of a Debt Offer with respect to the Senior Notes shall not be a condition to Closing. The Debt Offers shall be conducted in compliance with (and the terms of any Debt Offer shall comply with) the Indenture and applicable Law, including SEC Regulatory Requirementsrules and regulations. The Company shall, and shall cause its subsidiaries and their respective Representatives to, in each case, use their reasonable best efforts to provide all cooperation reasonably requested by BidCo in connection with any Debt Offer; provided, that the Company shall not be required to cooperate with respect to any Debt Offer that is not in compliance with the Senior NotesIndenture and applicable Laws.
(ii) Subject to the receipt of any requisite consents in connection with a consent solicitation, the Company and its subsidiaries shall execute a supplemental indenture to the Indenture in accordance with the Indenture, amending the terms and SEC Regulatory Requirementsprovisions of the Indenture as described in the Debt Offer Documents as reasonably requested by BidCo, which supplemental indenture shall become operative no earlier than the Effective Date or the acceptance for purchase of the Senior Notes by BidCo, and shall use reasonable best efforts to cause the trustee under the Indenture to enter into such supplemental indenture. Subject to Section 5.13(b), at Parent’s expense, the The Company shall, and shall cause the Company Subsidiaries its subsidiaries and their respective representatives Representatives to, in each case, use their reasonable best efforts to provide all cooperation reasonably requested by Parent in connection with the Debt Offer; provided that prior to the Closing, neither the Company nor any of the Company Subsidiaries, nor counsel for the Company shall be required to furnish any officer’s certificates, legal opinions or negative assurance letters in connection with the Debt Offers (other than, BidCo in connection with the execution of a supplemental indenture relating to any consent solicitation of the type described in clause (ii) belowindentures, including, if requested by BidCo, the Company delivering customary officer’s certificates, and using shall use its reasonable best efforts to cause its legal counsel for the Company to deliver provide all customary legal opinions, respectively, to opinions required in connection with the trustee under the Indenture, transactions contemplated by this clause (ii) to the extent such certificates and opinions would not (in legal opinion is required to be delivered prior to the opinion of the Company, its counsel and the Trustee) conflict with applicable Laws, the terms of the Senior Notes or the Indenture and would be accurate in light of the facts and circumstances at the time delivered) or execute any other instruments or agreements in connection therewith other than the supplemental indenture described in clause (ii) below. To the extent that the provisions of SEC Regulatory Requirements conflict with this Section 5.14(b)(i), Parent and the Company shall comply with SEC Regulatory Requirements and shall not be deemed to have breached their obligations under this Agreement by such complianceEffective Date. Notwithstanding the foregoing and for the avoidance of doubtforegoing, in no event shall the Company or its legal counsel be required to give an opinion with respect to a Debt Offer that in the Financing reasonable opinion of the Company does not comply with applicable Laws or any other financing of Parent or Merger Subthe Indenture.
(iiiii) To the extent any If requested by BidCo, in lieu of or in addition to BidCo commencing a Debt Offer includes a consent solicitation, then subject to for the receipt of the requisite consentsSenior Notes, the Company and the applicable Company Subsidiaries shall execute a supplemental indenture use its reasonable best efforts, to the Indenture in accordance with the terms of extent permitted by the Indenture, amending to (A) issue one or more notices of optional redemption for all or a portion of the terms outstanding aggregate principal amount of the Senior Notes (which may be delivered at BidCo’s request in advance of the Effective Date so long as they are contingent upon the occurrence of the Effective Date (it being understood and agreed that they may also be contingent upon the occurrence of other events in addition to the occurrence of the Effective Date)), pursuant to the redemption provisions of the Indenture as described in the relevant Debt Offer Documents as and (B) take any other actions reasonably requested by Parent, which supplemental indenture shall become operative no earlier than BidCo to facilitate the Effective Time; provided, however, that in no event shall the Company or any of its officers, directors or other representatives have any obligation to authorize, adopt or execute any amendments or other agreement that is not permitted under applicable Law, the terms satisfaction and discharge of the Senior Notes or pursuant to the satisfaction and discharge provisions of the Indenture or would become operative prior to and the other provisions of the Indenture applicable thereto. If a conditional notice of redemption is given, BidCo shall ensure that on the Effective TimeDate, so long as the applicable conditions of such redemption are satisfied, the Company has all funds necessary in connection with such redemption.
Appears in 1 contract
Senior Notes. (i) Parent will be permitted to commence and conduct, in accordance with the terms of that certain indenture, dated as of May 18, 2017 (the “Indenture”) by and among the Company, the subsidiary guarantors party thereto and Wilmington Trust, National Association, as trustee (the “Trustee”), one or more offers to purchase, including any “Change of Control Offer” (as such term is defined in the Indenture) or and/or any tender offer, or any exchange offer, and to conduct a consent solicitation, if any (each, a “Debt Offer” and collectively, the “Debt Offers”), with respect to any or all of the outstanding aggregate principal amount of the 6.625% Senior Notes due 2022 issued by the Company prior to the date hereof pursuant to the Indenture (the “Senior Notes”) identified by Parent to the Company in writing prior to, on, or after the date hereof on terms that are acceptable to Parent; provided, provided that any such Debt Offer shall be is consummated using funds provided by Parent. Parent shall not be permitted to commence any applicable Debt Offer until Parent shall have provided the Company with the necessary offer to purchase, offer to exchange, consent solicitation statement, letter of transmittal and press release, if any, or other related documents in connection therewith and each other document relevant to such transaction that will be distributed by Parent to holders of with the Senior Notes in the applicable Debt Offer (collectively, the “Debt Offer Documents”) a reasonable period of time in advance of commencing the applicable Debt Offer to allow the Company and its counsel a reasonable opportunity to review and comment on the related Debt Offer Documents. Parent will reasonably consult with the Company regarding the material terms and conditions of any Debt Offer (other than financial terms), including the timing and commencement of any Debt Offer and any relevant tender or consent deadlines. The closing (or, if applicable, effectiveness) of the Debt Offers shall be expressly conditioned on the occurrence of the ClosingClosing or the acceptance for purchase of the Senior Notes by Parent or Merger Sub, and the Company will parties shall use reasonable best efforts to cooperate with Parent, at Parent’s request, to facilitate the initial settlement of cause the Debt Offers by Parent to close on the Closing Date; provided, provided that the consummation of a Debt Offer with respect to the Senior Notes shall not be a condition to Closing. The Debt Offers shall be conducted in compliance with (and the terms of any Debt Offer shall comply with) the Indenture and applicable Law, including SEC Regulatory Requirementsrules and regulations, and the Company shall not be required to cooperate with respect to any Debt Offer that is not in compliance with the Senior Notes, the Indenture and SEC Regulatory Requirementsapplicable Laws. Subject to Section 5.13(b), at Parent’s expense, the The Company shall, and shall cause the Company its Subsidiaries and their respective representatives Representatives to, in each case, use their reasonable best efforts to provide all cooperation reasonably requested by Parent in connection with the Debt Offer; provided that prior to the Closing, neither the Company nor any of the Company Subsidiaries, nor counsel for the Company shall be required to furnish any officer’s certificates, legal opinions or negative assurance letters in connection with the Debt Offers (other than, in connection with the execution of a supplemental indenture relating to any consent solicitation of the type described in clause (ii) below, the Company delivering customary officer’s certificates, and using reasonable best efforts to cause counsel for the Company to deliver customary legal opinions, respectively, to the trustee under the Indenture, to the extent such certificates and opinions would not (in the opinion of the Company, its counsel and the Trustee) conflict with applicable Laws, the terms of the Senior Notes or the Indenture and would be accurate in light of the facts and circumstances at the time delivered) or execute any other instruments or agreements in connection therewith other than the supplemental indenture described in clause (ii) below. To the extent that the provisions of SEC Regulatory Requirements any applicable Law conflict with this Section 5.14(b)(i)6.14, Parent and the Company shall comply with SEC Regulatory Requirements the applicable Law and shall not be deemed to have breached their obligations under this Agreement by such compliance. Notwithstanding the foregoing and for the avoidance of doubt, in no event shall the Company or its legal counsel be required to give an opinion with respect to the Financing or any other financing of Parent or Merger Sub.
(ii) To the extent any Debt Offer includes a consent solicitation, then subject Subject to the receipt of the any requisite consents, the Company and the applicable Company its Subsidiaries shall execute a supplemental indenture to the Indenture in accordance with the terms of the Indenture, amending the terms and provisions of the Indenture as described in the relevant Debt Offer Documents as reasonably requested by Parent, which supplemental indenture shall become operative no earlier than the Effective TimeTime or the acceptance for purchase of the Senior Notes by Parent or Merger Sub, and shall use reasonable best efforts to cause the Trustee to enter into such supplemental indenture prior to or substantially simultaneously with the Closing as determined by Parent; provided, however, that in no event shall the Company or any of its officers, directors or other representatives Representatives have any obligation to authorize, adopt or execute any amendments or other agreement that is not permitted under applicable Law, the terms of the Senior Notes or the Indenture Law or would become operative prior to the Effective Time or the time of acceptance for purchase of the Senior Notes by Parent or Merger Sub. The Company shall, and shall cause its Subsidiaries and their respective Representatives to, in each case, use their reasonable best efforts to provide all cooperation reasonably requested by Parent in connection with the execution of supplemental indentures. If requested by Parent, the Company shall use its reasonable best efforts to cause its legal counsel to provide all customary legal opinions required in connection with the transactions contemplated by this Section 6.14 to the extent such legal opinion is required to be delivered prior to the Effective Time. Notwithstanding the foregoing, in no event shall the Company or its legal counsel Active.22007448.8.doc be required to give an opinion with respect to a Debt Offer that in the opinion of the Company, its legal counsel or the Trustee does not comply with applicable Laws or the Indenture, or an opinion with respect to financing by Parent or Merger Sub.
(iii) If requested by Parent, in lieu of or in addition to Parent commencing a Debt Offer for the Senior Notes, the Company shall use its reasonable best efforts, to the extent permitted by the Indenture, to (A) issue one or more notices of optional redemption for all or a portion of the outstanding aggregate principal amount of the Senior Notes (which may be delivered at Parent’s request in advance of the Closing Date so long as they are contingent upon the occurrence of the Closing (it being understood and agreed that they may also be contingent upon the occurrence of other events in addition to the Closing)), pursuant to the redemption provisions of the Indenture and (B) take any other actions reasonably requested by Parent to facilitate the satisfaction and discharge of the Senior Notes pursuant to the satisfaction and discharge provisions of the Indenture and the other provisions of the Indenture applicable thereto; provided that prior to, or substantially concurrently with, the Company being required under clause (A) above to issue any notice of redemption to be issued substantially simultaneously with the Effective Time, Parent shall have, or shall have caused to be, deposited with the Trustee under the Indenture sufficient funds to effect such redemption and satisfaction and discharge. If a conditional notice of redemption is given, Parent shall ensure that at the Effective Time, so long as the applicable conditions of such redemption are satisfied, the Company has all funds necessary in connection with any such redemption and satisfaction and discharge. The Company shall, and shall cause its Subsidiaries and their respective Representatives to, in each case, use their reasonable best efforts to provide all cooperation reasonably requested by Parent in connection with this Section 6.14.
(iv) Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable outside attorneys’ fees) to the extent incurred by the Company, any of its Subsidiaries or the Trustee in connection with this Section 6.14. Parent shall indemnify and hold harmless the Company and its Subsidiaries and the Company Representatives from and against any and all losses suffered or incurred by them in connection with any action taken by them in connection with the performance of their respective obligations under this Section 6.14 except to the extent suffered or incurred as a result of the bad faith, gross negligence or willful misconduct of, or material breach of this Agreement by, the Company, any of its Subsidiaries or, in each case, their respective Affiliates, and the respective directors, officers, employees, partners, members, managers, agents, advisors, controlling persons, and the other representatives and successors of each of the foregoing.
Appears in 1 contract
Senior Notes. (i) Upon written request of Parent, the Company shall, and shall cause its Subsidiaries and its and their Representatives to, as applicable, use commercially reasonable efforts to (i) deliver to the Notes Trustee under the applicable Senior Notes Indenture, at the Effective Time, a notice of optional redemption and any required customary officers’ certificates, in each case, in the form required by the applicable Senior Notes Indenture and prepared by Parent and its counsel, for up to all of the outstanding aggregate principal amount of any series of Senior Notes outstanding and identified by Parent pursuant to the redemption provisions of the applicable Senior Notes Indenture and the Senior Notes, and (ii) provide assistance reasonably requested by Parent to facilitate the redemption of any series of Senior Notes identified by Parent or the satisfaction and discharge of any series of Senior Notes identified by Parent at the Effective Time pursuant to the redemption and satisfaction and discharge provisions, respectively, and other applicable provisions of the applicable Senior Notes Indenture (each, a “Discharge”); provided, however, that Parent shall have provided to the Company a draft of any notice of redemption and officers’ certificates a reasonable period of time in advance of the distribution and/or execution thereof to allow the Company and its counsel to review and comment on such notice of redemption and officers' certificates (and Parent shall consider in good faith comments of the Company and its counsel thereon). Notwithstanding anything herein to the contrary, in no event shall this Section 7.14(b) require the Company or any of its Subsidiaries to cause any redemption or Discharge to be effective unless and until the Effective Time has occurred and Parent has provided or caused to be provided to the Notes Trustee under the applicable Senior Notes Indenture funds (or Parent has directed the Company or any of its Subsidiaries to use funds on their balance sheet) sufficient to effect any such redemption or Discharge in compliance with the provisions of such applicable Senior Notes Indenture.
(ii) Parent or any Subsidiary of Parent will also be permitted to commence and conduct, in accordance with the terms of that certain indenture, dated as of May 18, 2017 (the “Indenture”) by Senior Notes Indentures and among the Company, the subsidiary guarantors party thereto and Wilmington Trust, National Association, as trustee (the “Trustee”)applicable legal requirements, one or more exchange offers to purchase, including any “Change of Control Offer” (as such term is defined in the Indenture) or any tender offer, or any exchange offer, and to conduct a consent solicitation, if any (each, a “Debt Offer” and collectively, the “Debt Offers”), solicitations with respect to any or all of the outstanding aggregate principal amount Senior Notes; provided that, the closing of the 6.625% Senior Notes due 2022 issued by the Company any such exchange offer or consent solicitation shall not be consummated prior to the date hereof pursuant Effective Time, shall be subject to the Indenture (occurrence of, the “Senior Notes”) identified Effective Time, and any such transaction shall be funded solely using consideration provided by Parent to the Company in writing prior to, on, or after the date hereof on terms that are acceptable to Parent; provided, that any such Debt Offer shall be consummated using funds provided by Parentof its Subsidiaries. Parent shall not be permitted consult with the Company regarding the material terms and conditions of any such transaction, including the timing and commencement thereof and any exchange or consent deadlines. In the event that Parent or any Subsidiary of Parent initiates any exchange offer or consent solicitation with respect to commence any applicable Debt Offer until Senior Notes, Parent shall have provided the Company with the necessary offer to purchase, offer to exchange, consent solicitation statement, letter of transmittal and press release, if any, in connection therewith and each other document relevant to such transaction that will be distributed by Parent to holders of the Senior Notes in the applicable Debt Offer (collectively, the “Debt Offer Documents”) a period of time in advance of commencing the applicable Debt Offer to allow give the Company and its counsel a reasonable opportunity to review and comment on the related Debt Offer Documents. Parent will reasonably consult with any disclosure in respect of the Company regarding the material terms and conditions of proposed to be included in any Debt Offer (other than financial terms)offering or marketing documents related to such exchange offer or consent solicitation, including all amendments and supplements thereto, prior to the timing first use of such documents or disseminating them to prospective investors, and commencement shall consider any comments proposed by the Company or its counsel in good faith. Each of the Company and its Subsidiaries shall use its commercially reasonable efforts to provide assistance reasonably requested by Parent to facilitate any Debt Offer and any relevant tender exchange offer or consent deadlines. The closing (or, if applicable, effectiveness) of the Debt Offers shall be expressly conditioned on the occurrence of the Closing, and the Company will use reasonable best efforts to cooperate with Parent, at Parent’s request, to facilitate the initial settlement of the Debt Offers solicitation initiated by Parent on the Closing Date; provided, that the consummation or any Subsidiary of a Debt Offer Parent in connection with respect to the Senior Notes shall not be a condition to Closing. The Debt Offers shall be conducted in compliance with (and the terms of any Debt Offer shall comply with) the Indenture and SEC Regulatory Requirements, and the Company shall not be required to cooperate with respect to any Debt Offer that is not in compliance with the Senior Notes, the Indenture and SEC Regulatory Requirements. Subject to Section 5.13(b), at Parent’s expense, the Company shall, and shall cause the Company Subsidiaries and their respective representatives toand, in each case, use their reasonable best efforts to provide all cooperation take any other actions reasonably requested by Parent that are customary or necessary in connection with the Debt Offertherewith; provided that that, prior to the ClosingEffective Time, neither the Company nor any of the Company Subsidiaries, its Subsidiaries nor counsel for the Company any of them shall be required to furnish any officer’s certificates, legal opinions or negative assurance letters in connection with the Debt Offers any exchange offer or consent solicitation (other than, in connection with the execution of a supplemental indenture relating to any a consent solicitation of the type described in clause (ii) belowsolicitation, the Company delivering customary officer’s certificates, officers’ certificates (prepared by Parent and using reasonable best efforts its counsel as described in the immediately following paragraph) that are required to cause counsel for the Company to deliver customary legal opinions, respectively, be delivered to the trustee Notes Trustee under the a Senior Notes Indenture, to the extent such certificates and opinions would not (not, in the reasonable opinion of the Company, its counsel and or the Trustee) Notes Trustee under any Senior Notes Indenture, conflict with applicable Laws, the terms of the legal requirements or such Senior Notes or the Indenture and would be accurate in light of the facts and circumstances at the time delivered) or execute any other instruments or agreements in connection therewith other than the supplemental indenture described in clause (ii) below. To the extent that the provisions of SEC Regulatory Requirements conflict with this Section 5.14(b)(i), Parent and the Company shall comply with SEC Regulatory Requirements and shall not be deemed to have breached their obligations under this Agreement by such compliance. Notwithstanding the foregoing and for the avoidance of doubt, in no event shall the Company or its legal counsel be required to give an opinion immediately following paragraph with respect to the Financing a consent solicitation. All legal opinions and negative assurance letters customary or required in connection with any other financing of Parent exchange offer or Merger Subconsent solicitation shall be delivered by counsel to Parent.
(iiiii) To the extent any Debt Offer includes a consent solicitation, then subject Subject to the receipt of the any requisite consentsconsents in connection with any consent solicitation, the Company and the applicable Company its Subsidiaries shall use commercially reasonable efforts to execute a one or more supplemental indenture indentures to the Indenture Senior Notes Indentures prepared by Parent and its counsel in accordance with the terms of the IndentureSenior Notes Indentures, amending the terms and provisions of the Indenture Senior Notes Indentures as described in the relevant Debt Offer Documents applicable consent solicitation, as reasonably requested by Parent, which supplemental indenture indentures shall become effective upon the execution thereof (or as otherwise contemplated in the applicable consent solicitation) and operative no earlier than than, and subject to the occurrence of, the Effective Time; provided, however, that (i) Parent shall have provided to the Company drafts of any supplemental indenture and related officers’ certificates a reasonable period of time in advance of the execution thereof to allow the Company and its counsel to review and comment on such supplemental indenture and officers’ certificates (and Parent shall consider in good faith comments of the Company and its counsel thereon) and (ii) in no event shall the Company Company, its Subsidiaries or any of its their respective officers, directors or other representatives Representatives have any obligation to authorize, adopt or execute any amendments or other agreement that is not permitted would, in the reasonable opinion of the Company, its counsel or the Notes Trustee under applicable Lawthe Senior Notes Indentures, be inconsistent with the terms of the Senior Notes Indentures or the Indenture applicable legal requirements or that would become operative prior to before the Effective Time. Notwithstanding anything herein to the contrary, in no event shall this Section 7.14(b) require the Company or any of its Subsidiaries to cause any supplemental indenture to become operative unless and until the Effective Time has occurred and Parent or a Subsidiary of Parent has provided or caused to be provided to the Notes Trustee under the applicable Senior Notes Indenture funds (or Parent has directed the Company or any of its Subsidiaries to use funds on their balance sheet) sufficient to pay any applicable fees owed to the holders of any Senior Notes in compliance with the terms and conditions of any applicable exchange offer or consent solicitation initiated by Parent or any Subsidiary of Parent with respect to any Senior Notes.
Appears in 1 contract
Senior Notes. (i) Parent will be permitted to commence and conductAs promptly as practicable following the date hereof, in accordance with the terms Company shall solicit waivers from holders of that certain indenture, dated as a requisite majority or majorities of May 18, 2017 (the “Indenture”) by and among the Company, the subsidiary guarantors party thereto and Wilmington Trust, National Association, as trustee (the “Trustee”), one or more offers to purchase, including any “Change of Control Offer” (as such term is defined in the Indenture) or any tender offer, or any exchange offer, and to conduct a consent solicitation, if any (each, a “Debt Offer” and collectively, the “Debt Offers”), with respect to any or all of the 's outstanding aggregate principal amount of the 6.62514% Senior Notes due 2022 issued by 2007 (the Company prior "Notes") of the applicability to the date hereof pursuant to transactions contemplated hereby of certain covenants set forth in the Indenture (indenture governing the “Senior Notes”) , as identified by Parent to the Company in writing prior to(such waivers, onthe "Requisite Waivers"). If requested by RV, or after the Company shall prepare and distribute to the holders of the Notes, as promptly as reasonably practicable following the date hereof on terms that are acceptable to Parent; provided, that any such Debt Offer shall be consummated using funds provided by Parent. Parent shall not be permitted to commence any applicable Debt Offer until Parent which the Registration Statement shall have provided the Company with the necessary been declared effective, an offer to purchase, offer to exchange, purchase and consent solicitation statement, letter of on terms and conditions and in a form satisfactory to RV (together with all related transmittal and press releaseconsent forms and other documents delivered to such holders, the "Tender Offer Statement"), seeking the tender, and the delivery of an accompanying consent by holders of a requisite majority or majorities of outstanding principal amount of the Notes ("Requisite Majority") to the amendments to the indenture constituting the Notes as are considered necessary or appropriate by RV. RV shall be entitled to participate in the preparation of the Tender Offer Statement and in any discussions with holders of Notes relating to the terms of any offer to purchase Notes or solicitation of consents or waivers. The Company shall not distribute to any Person the Tender Offer Statement or any written material relating to any offer to purchase Notes or to the solicitation of any consents or waivers from holders of the Notes, or make any announcement with respect to the Tender Offer Statement or any such offer or solicitation, or engage, directly or through intermediaries, in any discussions with any holder of Notes after the date hereof, without the prior express approval of RV. Any registration statement, if any, required in connection therewith with any such offer or solicitation shall be in form and each other document relevant substance satisfactory to such transaction that will RV, and RV shall be distributed by Parent entitled to holders of the Senior Notes participate in the applicable Debt Offer (collectively, the “Debt Offer Documents”) a period of time in advance of commencing the applicable Debt Offer to allow the Company preparation and its counsel a reasonable opportunity to review and comment on the related Debt Offer Documents. Parent will reasonably consult with the Company regarding the material terms and conditions of any Debt Offer (other than financial terms), including the timing and commencement of any Debt Offer and any relevant tender or consent deadlines. The closing (or, if applicable, effectiveness) of the Debt Offers shall be expressly conditioned on the occurrence of the Closing, and the Company will use reasonable best efforts to cooperate with Parent, at Parent’s request, to facilitate the initial settlement of the Debt Offers by Parent on the Closing Date; provided, that the consummation of a Debt Offer with respect to the Senior Notes shall not be a condition to Closing. The Debt Offers shall be conducted in compliance with (and the terms of any Debt Offer shall comply with) the Indenture and SEC Regulatory Requirementsfiling thereof, and the Company shall not be required to cooperate with respect to any Debt in such preparation and filing as the registrant thereunder. If RV shall have requested the distribution of a Tender Offer that is not in compliance with the Senior Notes, the Indenture and SEC Regulatory Requirements. Subject to Section 5.13(b)Statement, at Parent’s expense, the Closing (provided that the Requisite Majority has been obtained) the Company shall execute and deliver to the trustee under the indenture relating to the Notes a supplemental indenture in the form specified in, and otherwise in accordance with, such Tender Offer Statement. On or prior to the settlement date of any tender offer, Parent shall, and shall cause the Company Subsidiaries and their respective representatives RV to, in each case, use their reasonable best efforts provide financing as necessary to provide all cooperation reasonably requested by Parent in connection with the Debt Offer; provided that prior to the Closing, neither the Company nor any of the Company Subsidiaries, nor counsel for the Company shall be required to furnish any officer’s certificates, legal opinions or negative assurance letters in connection with the Debt Offers (other than, in connection with the execution of a supplemental indenture relating to any consent solicitation of the type described in clause (ii) below, the Company delivering customary officer’s certificates, and using reasonable best efforts to cause counsel for enable the Company to deliver customary legal opinions, respectively, to the trustee under the Indenture, to the extent such certificates and opinions would not (in the opinion of the Company, its counsel and the Trustee) conflict with applicable Laws, the terms of the Senior Notes or the Indenture and would be accurate in light of the facts and circumstances at the time delivered) or execute any other instruments or agreements in connection therewith other than the supplemental indenture described in clause (ii) below. To the extent that the provisions of SEC Regulatory Requirements conflict with this Section 5.14(b)(i), Parent and the Company shall comply with SEC Regulatory Requirements and shall not be deemed to have breached their obligations under this Agreement by such compliance. Notwithstanding the foregoing and pay for the avoidance of doubttendered Notes, in no event shall the Company or its legal counsel be required to give an opinion with respect to the Financing or any other financing of Parent or Merger Sub.
(ii) To the extent any Debt Offer includes a consent solicitation, then subject to the receipt of the requisite consents, the Company and the applicable Company Subsidiaries shall execute a supplemental indenture to the Indenture in accordance manner not inconsistent with the terms of the IndentureTender Offer Statement. The Company shall be responsible for all out-of-pocket expenses incurred by it in connection with the making of any offers to purchase Notes or solicitation as contemplated in this Section, amending the terms provided that RV shall pay and provisions of the Indenture as described in the relevant Debt Offer Documents as reasonably requested by Parent, which supplemental indenture shall become operative no earlier than the Effective Time; provided, however, that in no event shall reimburse the Company or any of its officers, directors or other representatives have any obligation to authorize, adopt or execute any amendments or other agreement that is not permitted under applicable Law, the terms of the Senior Notes or the Indenture or would become operative prior to the Effective Time.for all out-of-pocket fees and
Appears in 1 contract
Senior Notes. (ia) On the Closing Date, Parent will be permitted and the Company shall, as and to commence and conduct, in accordance with the terms of that certain indentureextent required by the Indenture (the “Senior Notes Indenture”), dated as of May 18April 10, 2017 (2018, between the “Indenture”) by and among the Company, the subsidiary guarantors party thereto Company and Wilmington Trust, National Association, as trustee (the “Trustee”), one or more offers ) relating to purchase, including any “Change of Control Offer” (as such term is defined in the Indenture) or any tender offer, or any exchange offer, and to conduct a consent solicitation, if any (each, a “Debt Offer” and collectively, the “Debt Offers”), with respect to any or all of the outstanding aggregate principal amount of the 6.625Company’s 5.5% Senior Notes due 2022 issued by the Company prior to the date hereof pursuant to the Indenture Due 2026 (the “Senior Notes”) identified by Parent to the Company in writing prior to, on, or after the date hereof on terms that are acceptable to Parent; provided, that any such Debt Offer shall be consummated using funds provided by Parent. Parent shall not be permitted to commence any applicable Debt Offer until Parent shall have provided the Company with the necessary offer to purchase, offer to exchange, consent solicitation statement, letter of transmittal and press release, if any, in connection therewith and each other document relevant to such transaction that will be distributed by Parent to holders of the Senior Notes in the applicable Debt Offer (collectively, the “Debt Offer Documents”) a period of time in advance of commencing the applicable Debt Offer to allow the Company and its counsel a reasonable opportunity to review and comment on the related Debt Offer Documents. Parent will reasonably consult with the Company regarding the material terms and conditions of any Debt Offer (other than financial terms), including the timing and commencement of any Debt Offer and any relevant tender or consent deadlines. The closing (or, if applicable, effectiveness) of the Debt Offers shall be expressly conditioned on the occurrence of the Closing, and the Company will use reasonable best efforts to cooperate with Parent, at Parent’s request, to facilitate the initial settlement of the Debt Offers by Parent on the Closing Date; provided, that the consummation of a Debt Offer with respect to the Senior Notes shall not be a condition to Closing. The Debt Offers shall be conducted in compliance with (and the terms of any Debt Offer shall comply with) the Indenture and SEC Regulatory Requirements, and the Company shall not be required to cooperate with respect to any Debt Offer that is not in compliance with the Senior Notes, the Indenture and SEC Regulatory Requirements. Subject to Section 5.13(b), at Parent’s expense, the Company shall, and shall cause the Company Subsidiaries and their respective representatives to, in each case, use their reasonable best efforts to provide all cooperation reasonably requested by Parent in connection with the Debt Offer; provided that prior transactions contemplated by this Agreement, cause to be delivered the Closing, neither the Company nor any of the Company Subsidiaries, nor counsel for the Company shall be required to furnish any officer’s certificatescertificate, legal opinions opinion of counsel and any other notices or negative assurance letters documentation required by the Senior Notes Indenture or advisable to be delivered pursuant to Section 4.1(a)(4) thereof or otherwise in connection with the Debt Offers (other thanClosing, in connection with the execution of a supplemental indenture relating to any consent solicitation of the type described in clause (ii) below, the Company delivering customary officer’s certificates, and using reasonable best efforts to cause counsel for the Company to deliver customary legal opinions, respectively, to the trustee under the Indenture, to the extent such certificates and opinions would not (in the opinion of the Company, its counsel and the Trustee) conflict with applicable Laws, the terms of the Senior Notes or the Indenture and would be accurate in light of the facts and circumstances at the time delivered) or execute any other instruments or agreements in connection therewith other than the supplemental indenture described in clause (ii) below. To the extent that the provisions of SEC Regulatory Requirements conflict with this Section 5.14(b)(i), Parent and the Company shall comply with SEC Regulatory Requirements and shall not be deemed to have breached their obligations under this Agreement by such compliance. Notwithstanding the foregoing and for the avoidance of doubt, in no event shall the Company or its legal counsel be required to give an opinion with respect to the Financing or any other financing of Parent or Merger Sub.
(ii) To the extent any Debt Offer includes a consent solicitation, then subject to the receipt of the requisite consents, the Company and the applicable Company Subsidiaries shall execute a supplemental indenture to the Indenture in accordance with the terms of the Indenture, amending the terms and provisions of the Indenture as described in the relevant Debt Offer Documents as reasonably requested by Parent, which supplemental indenture shall become operative no earlier than the Effective Time; provided, however, it being understood that in no event shall the Company or any of its officersSubsidiaries be required to bear any out-of-pocket third party cost or expense or pay any fee (other than those costs and fees that Parent commits to reimburse) in connection with the delivery of such officer’s certificate, directors opinion or other representatives have any obligation notices or documentation. The Company shall provide Parent and its counsel reasonable opportunity to authorizereview and comment on such officers’ certificate, adopt legal opinion and other notices or execute any amendments documentation prior to the delivery thereof, each of which shall be subject to the prior approval of Parent (such approval not to be unreasonably withheld, conditioned or delayed).
(b) In connection with the Merger and the other agreement transactions contemplated by this Agreement, in the event that is not permitted under applicable LawParent desires to purchase, effective immediately prior to (but subject to the terms occurrence of), on or after the Effective Time, some or all of the Senior Notes, whether through open market purchases, privately negotiated transactions or one or more offers to purchase the Senior Notes or other similar transactions (including any tender offer) (any such transaction, a “Repurchase Transaction”), each of the Indenture Company, Parent and Merger Sub shall use its respective reasonable best efforts to, and will use its respective reasonable best efforts to cause its respective affiliates and Representatives (and, in the case of the Company, the Trustee) to, reasonably cooperate with one another in good faith to permit such Repurchase Transaction to be effected on such terms, conditions and timing as reasonably requested by Parent, including, if so reasonably requested by Parent, causing such Repurchase Transaction to be consummated substantially concurrently with, but not prior to, the Closing, and Parent shall, and the Company shall reasonably assist and cooperate with Parent to, prepare any documentation related thereto, in form and substance reasonably satisfactory to the Company, and shall provide the Company reasonable time to review such documentation; it being understood that in no event shall the Company or would become operative any of its Subsidiaries be required (i) to enter into or approve any documentation referred to in this Section 5.16(b) that takes effect or is effective prior to the Effective Time, or commence or effect any Repurchase Transaction that will result in such Repurchase Transaction being effective prior to the Effective Time, (ii) incur any financing or provide assistance in obtaining any financing for a Repurchase Transaction, or (iii) to bear any out-of-pocket third party cost or expense or pay any fee (other than those costs and fees that Parent commits to reimburse) or provide any indemnity (other than any indemnity that Parent commits to reimburse or indemnify the Company for); it being further understood that no such Repurchase Transaction shall delay the Closing beyond the date that it is required to occur under Section 1.2.
Appears in 1 contract
Senior Notes. (ia) Unless otherwise required by Law or the terms of the 2029 Senior Notes, the 2029 Senior Notes Indenture and the 2029 Senior Notes Officers’ Certificate, prior to the First Effective Time, the Company shall not exercise its right to redeem or make an offer to repurchase the 2029 Senior Notes without the prior written consent of Parent. Upon written request by Parent will be permitted at its sole discretion and at Parent’s sole cost and expense (including with respect to commence principal and conductinterest of the 2029 Senior Notes), the Company shall use reasonable best efforts to exercise its right to redeem or make an offer to repurchase the 2029 Senior Notes in accordance with the terms of that certain indenture, dated as of May 18, 2017 (the “Indenture”) by and among the Company2029 Senior Notes, the subsidiary guarantors party thereto 2029 Senior Notes Indenture and Wilmington Trustthe 2029 Senior Notes Officers’ Certificate. Notwithstanding the foregoing, National Association, as trustee (nothing in this Section 5.23 shall require the “Trustee”), one or more offers to purchase, including any “Change of Control Offer” (as such term is defined in the Indenture) Company or any tender offer, of its Subsidiaries to pay or deposit any exchange offer, and amounts required to conduct a consent solicitation, if any (each, a “Debt Offer” and collectively, redeem or repurchase the “Debt Offers”), with respect to any or all of the outstanding aggregate principal amount of the 6.625% 2029 Senior Notes due 2022 issued by the Company prior to the date hereof pursuant First Effective Time, except to the Indenture (the “Senior Notes”) identified extent such amounts and related expenses have been previously provided by Parent to the Company or its Subsidiaries, as applicable, in writing prior toaccordance with this Agreement.
(b) Prior to the First Effective Time, on, to the extent Parent determines to conduct an exchange offer and consent solicitation relating to the 2029 Senior Notes for debt securities of Parent or after the date hereof on terms that are acceptable to Parent; provided, that any of its Subsidiaries (any such Debt Offer shall be consummated using funds provided by Parent. Parent shall not be permitted to commence any applicable Debt Offer until Parent shall have provided the Company with the necessary offer to purchase, offer to exchange, consent solicitation statement, letter of transmittal and press release, if any, in connection therewith and each other document relevant to such transaction that will be distributed by Parent to holders of the Senior Notes in the applicable Debt Offer (collectivelytransaction, the “Debt Offer DocumentsExchange”) a period of time in advance of commencing the applicable Debt Offer to allow the Company and its counsel a reasonable opportunity to review and comment on the related Debt Offer Documents. Parent will reasonably consult with the Company regarding the material terms and conditions of any Debt Offer (other than financial terms), including the timing and commencement of any Debt Offer and any relevant tender or consent deadlines. The closing (or, if applicable, effectiveness) of the Debt Offers shall be expressly conditioned on the occurrence of the Closing, and the Company will use reasonable best efforts to cooperate with Parent, at Parent’s request, to facilitate the initial settlement of the Debt Offers by Parent on the Closing Date; provided, that the consummation of a Debt Offer with respect to the Senior Notes shall not be a condition to Closing. The Debt Offers shall be conducted in compliance with (and the terms of any Debt Offer shall comply with) the Indenture and SEC Regulatory Requirements, and the Company shall not be required to cooperate with respect to any Debt Offer that is not in compliance with the Senior Notes, the Indenture and SEC Regulatory Requirements. Subject to Section 5.13(b), at Parent’s expense, the Company shall, and shall cause the Company its Subsidiaries and their respective representatives to, in each case, and shall use their reasonable best efforts to provide all cooperation reasonably requested by Parent in connection with the Debt Offer; provided that prior to the Closing, neither the Company nor any of the Company Subsidiaries, nor counsel for the Company shall be required to furnish any officer’s certificates, legal opinions or negative assurance letters in connection with the Debt Offers (other than, in connection with the execution of a supplemental indenture relating to any consent solicitation of the type described in clause (ii) below, the Company delivering customary officer’s certificates, and using its reasonable best efforts to cause counsel for its and their respective Representatives to, on a timely basis, upon the Company to deliver customary legal opinionsreasonable request of Parent, respectivelyprovide reasonable cooperation in connection with the Exchange, to the trustee under the Indenture, to the extent such certificates and opinions would not (in the opinion of the Company, its counsel and the Trustee) conflict including providing cooperation substantially consistent with applicable Laws, the terms of Section 5.15(c) as though the Senior Notes or references therein to the Indenture Financing include references to the Exchange and would be accurate in light of the facts and circumstances at the time delivered) or execute any other instruments or agreements in connection therewith other than the supplemental indenture described in clause (ii) below. To the extent that the provisions of SEC Regulatory Requirements conflict with this Section 5.14(b)(i)including, Parent and the Company shall comply with SEC Regulatory Requirements and shall not be deemed to have breached their obligations under this Agreement by such compliance. Notwithstanding the foregoing and for the avoidance of doubt, in no event shall providing reasonable assistance with the Company or its legal counsel be required to give an opinion with respect preparation of, and executing and delivering (to the Financing or any other financing extent that officers of Parent or Merger Sub.
(ii) To the extent any Debt Offer includes a consent solicitation, then subject to the receipt of the requisite consents, the Company and the applicable Company Subsidiaries shall execute a supplemental indenture to the Indenture in accordance with the terms of the Indenture, amending the terms and provisions of the Indenture as described in the relevant Debt Offer Documents as reasonably requested by Parent, which supplemental indenture shall become operative no earlier than the Effective Time; provided, however, that in no event shall the Company or any Subsidiary thereof remain in such roles at the time of its officersthe Exchange and otherwise subject to Section 5.15(c)(III)), directors one or more supplemental indentures to the 2029 Senior Notes Indenture and such other representatives have any obligation to authorizedefinitive documentation and certifications as are customarily prepared in connection with an exchange and consent solicitation (collectively, adopt or execute any amendments or other agreement the “Exchange Documents”). Parent and the Company further agree that is not permitted under applicable Law, the terms of Section 5.15(d) shall apply to this Section 5.23(b); provided that (i) the Senior Notes or Exchange shall be at Parent’s sole cost and expense and (ii) none of the Indenture or would Exchange Documents shall become operative effective prior to the First Effective Time.
Appears in 1 contract
Sources: Merger Agreement (Hni Corp)
Senior Notes. (ia) Parent will be permitted The Company shall use its commercially reasonable efforts to commence commence, as promptly as practicable on or after the date hereof and conductfollowing receipt of written instructions from Parent, a consent solicitation with respect to a modification of the definition of “Investors” in accordance with the terms of that certain indentureIndenture, dated as of May 18June 15, 2017 2010 (the “Indenture”) by and ), among Trans Union LLC (“Trans Union LLC”), TransUnion Financing Corporation (together with Trans Union LLC, the Company“Issuers”), the subsidiary guarantors party thereto and Wilmington Trust▇▇▇▇▇ Fargo Bank, National Association, as trustee (trustee, governing the “Trustee”), one or more offers to purchase, including any “Change of Control Offer” (as such term is defined in the Indenture) or any tender offer, or any exchange offer, and to conduct a consent solicitation, if any (each, a “Debt Offer” and collectively, the “Debt Offers”), with respect to any or all of the outstanding aggregate principal amount of the 6.62511 3/8% Senior Notes due 2022 issued by the Company prior to the date hereof pursuant to the Indenture 2018 (the “Senior Notes”) identified by Parent to of the Company in writing prior toIssuers, on, or after the date hereof on terms primary effect of which will be that are acceptable to Parent; provided, that any such Debt Offer shall be consummated using funds provided by Parent. Parent the Trans Union LLC shall not be permitted required to commence any applicable Debt Offer until offer to purchase the Senior Notes after consummation of the Merger (or as may otherwise be reasonably determined by Parent for the purpose of facilitating the transactions contemplated hereby), and upon termination of such consent solicitation, upon receipt of written instructions from Parent, such other consent solicitation relating to the Senior Notes reasonably requested by Parent for the purpose of facilitating the transactions contemplated hereby (each, a “Consent Solicitation”). Any Consent Solicitation will contain such customary terms and conditions as are reasonably determined by Parent; provided that (i) this Agreement shall have provided not been terminated in accordance with Section 10.1 and (ii) either the Company shall have received from Parent all necessary and appropriate documentation in connection with the necessary offer to purchaseConsent Solicitation, offer to exchange, including the consent solicitation statement, letter of transmittal consent forms and press release, if any, in connection therewith and each other document relevant to such transaction that will be distributed by Parent to holders of the Senior Notes in the applicable Debt Offer related documents (collectively, the “Debt Offer Solicitation Documents”) a period of time in advance of commencing the applicable Debt Offer to allow the Company and its counsel a reasonable opportunity to review and comment on the related Debt Offer Documents. Parent will reasonably consult with the Company regarding the material terms and conditions of any Debt Offer (other than financial terms), including the timing and commencement of any Debt Offer and any relevant tender or consent deadlines. The closing (or, if applicable, effectiveness) of the Debt Offers which shall be expressly conditioned on in form and substance reasonably satisfactory to the occurrence of the ClosingCompany, and the Company will use reasonable best efforts to cooperate with Parentor, at Parent’s request, to facilitate the initial settlement of the Debt Offers by Parent on the Closing Date; provided, that the consummation of a Debt Offer with respect to the Senior Notes shall not be a condition to Closing. The Debt Offers shall be conducted in compliance with (and the terms of any Debt Offer shall comply with) the Indenture and SEC Regulatory Requirements, and the Company shall not prepare, or cause to be required to cooperate with respect prepared, such Solicitation Documents, as described in Section 5.4(c) below. The Company shall waive any of the conditions relating to any Debt Offer Consent Solicitation, as applicable, as may be reasonably requested by Parent in writing and shall not, without the written consent of Parent, waive any condition to any Consent Solicitation or make any changes to any Consent Solicitation other than as agreed between Parent and the Company. The Company shall use its commercially reasonable efforts to promptly make any change to the terms and conditions of any Consent Solicitation reasonably requested by Parent. Notwithstanding the foregoing, any proposed amendments to the Indenture contemplated by the Consent Solicitation shall revert to the form in effect prior to the effectiveness of any proposed amendments and be of no further effect if the Closing does not occur.
(b) The Company agrees that, promptly following any consent expiration date, assuming the requisite consents are received and conditions set forth in the Indenture have been satisfied, the Company shall cause each of its subsidiaries that is not party to the Indenture as is necessary to execute a supplemental indenture to the Indenture, which supplemental indenture shall implement the amendments set forth in compliance the Solicitation Documents and shall become operative upon the Effective Time. Concurrent with the Senior NotesEffective Time, Parent shall cause the Company to pay for consents validly delivered and not revoked in accordance with the Consent Solicitation, it being understood that all such payments shall be subject to the reimbursement provisions of Section 5.5 if such payments are made.
(c) Promptly after the date of this Agreement and subject to the reimbursement provisions of Section 5.5, Parent shall prepare, or shall request the Company to prepare, the Indenture Solicitation Documents. Parent and SEC Regulatory Requirements. Subject to Section 5.13(b), at Parent’s expense, the Company shall, and shall cause the Company Subsidiaries and their respective representatives subsidiaries to, reasonably cooperate with each other in each case, use their reasonable best efforts to provide the preparation of the Solicitation Documents and other customary documentation. Any Solicitation Documents (including all cooperation reasonably requested by Parent in connection with the Debt Offer; provided that prior amendments or supplements thereto) and all mailings to the Closing, neither the Company nor any of the Company Subsidiaries, nor counsel for the Company shall be required to furnish any officer’s certificates, legal opinions or negative assurance letters in connection with the Debt Offers (other than, in connection with the execution of a supplemental indenture relating to any consent solicitation of the type described in clause (ii) below, the Company delivering customary officer’s certificates, and using reasonable best efforts to cause counsel for the Company to deliver customary legal opinions, respectively, to the trustee under the Indenture, to the extent such certificates and opinions would not (in the opinion of the Company, its counsel and the Trustee) conflict with applicable Laws, the terms holders of the Senior Notes in connection with any Consent Solicitation shall be subject to the prior review of, and comment by, the Company and Parent and shall be reasonably acceptable in form and substance to each of them. If at any time prior to the completion of a Consent Solicitation any information in the Solicitation Documents should be discovered by the Company and its subsidiaries, on the one hand, or Parent, on the Indenture and would other, which should be accurate set forth in an amendment or supplement to the Solicitation Documents, as applicable, so that they shall not contain any untrue statements of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of circumstances under which they are made, not misleading, the facts party that discovers such information shall promptly notify the other party in writing, and circumstances at an appropriate amendment or supplement describing such information shall be disseminated by or on behalf of the time delivered) or execute Company to the holders of the Senior Notes. Notwithstanding anything to the contrary in this Section 5.4, the Company shall comply with any other instruments or agreements Applicable Law in connection therewith other than the supplemental indenture described in clause (ii) belowwith a Consent Solicitation. To the extent that the provisions of SEC Regulatory Requirements any Applicable Law conflict with this Section 5.14(b)(i)5.4, Parent and the Company shall comply with SEC Regulatory Requirements the Applicable Law and shall not be deemed to have breached their its obligations under this Agreement hereunder by such compliance. Notwithstanding the foregoing and for the avoidance of doubt, in no event shall the Company or its legal counsel be required to give an opinion with respect to the Financing or any other financing of Parent or Merger Sub.
(iid) To In connection with any Consent Solicitation, Parent may select one or more solicitation agents, information agents and other agents to provide assistance in connection therewith and the extent any Debt Offer includes a consent solicitationCompany shall, then subject and shall cause its subsidiaries to, enter into usual and customary agreements (including usual and customary indemnities) with such parties so selected and on terms and conditions reasonably acceptable to Parent. Parent shall provide, or cause to be provided, the requisite amount of funds to the receipt Company for all payments to holders of the requisite consents, the Company Senior Notes in respect of any consents validly delivered and the applicable Company Subsidiaries shall execute a supplemental indenture to the Indenture not revoked in accordance with the Consent Solicitation.
(e) Following the Closing, if requisite consents in the Consent Solicitation have not been obtained and a Change of Control (as defined in the Indenture) has occurred, the Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) comply with the requirements under the Indenture relating to an offer to purchase or redeem the outstanding Senior Notes as a result of the consummation of the transactions contemplated hereby.
(f) Notwithstanding anything to the contrary herein, it is expressly agreed by the parties hereto that the failure to obtain the consent of the holders of the Senior Notes in connection with any Consent Solicitation shall not be deemed to be a breach by the Company under this Agreement so long as the Company has complied with its obligations pursuant to this Section 5.4.
(g) The Company shall use its commercially reasonable efforts to commence, as promptly as practicable following receipt of written instructions from Parent, one or more offers to purchase the Senior Notes (an “Offer”). At the election of Parent, the Offer will (i) comply with the provisions of Section 4.14 of the Indenture and/or (ii) contain such customary terms and conditions as are reasonably determined by Parent; provided that (i) this Agreement shall have not been terminated in accordance with Section 10.1 and (ii) either the Company shall have received from Parent all necessary and appropriate documentation in connection with the Offer, including an offer to purchase or change of control notice, as applicable, letters of transmittal and other related documents (collectively, the “Offer Documents”), which shall be in form and substance reasonably satisfactory to the Company, or, at Parent’s request, the Company shall prepare, or cause to be prepared, such Offer Documents. Subject to the terms of Section 4.14 of the Indenture, amending if applicable, the terms Offer shall be conducted in accordance with this Section 5.4, mutatis mutandis, and provisions shall comply in all respects with Applicable Law. The consummation of any Offer shall be subject to the occurrence of the Indenture as described in the relevant Debt Offer Documents as reasonably requested by ParentClosing. Parent shall provide, which supplemental indenture shall become operative no earlier than the Effective Time; or cause to be provided, however, that in no event shall the requisite amount of funds to the Company or any for all payments to holders of its officers, directors or other representatives have any obligation to authorize, adopt or execute any amendments or other agreement that is not permitted under applicable Law, the terms of the Senior Notes or the Indenture or would become operative prior to the Effective Timein respect of any Notes purchased.
Appears in 1 contract
Sources: Merger Agreement (Transunion Corp.)
Senior Notes. (i) Parent will be permitted to commence and conduct, in accordance with the terms Upon written request of that certain indenture, dated as of May 18, 2017 (the “Indenture”) by and among the Company, the subsidiary guarantors party thereto and Wilmington Trust, National Association, as trustee (the “Trustee”), one or more offers to purchase, including any “Change of Control Offer” (as such term is defined in the Indenture) or any tender offer, or any exchange offer, and to conduct a consent solicitation, if any (each, a “Debt Offer” and collectively, the “Debt Offers”), with respect to any or all of the outstanding aggregate principal amount of the 6.625% Senior Notes due 2022 issued by the Company prior to the date hereof pursuant to the Indenture (the “Senior Notes”) identified by Parent to the Company in writing prior to, on, or after the date hereof on terms that are acceptable to Parent; provided, that any such Debt Offer shall be consummated using funds provided by Parent. Parent shall not be permitted to commence any applicable Debt Offer until Parent shall have provided the Company with the necessary offer to purchase, offer to exchange, consent solicitation statement, letter of transmittal and press release, if any, in connection therewith and each other document relevant to such transaction that will be distributed by Parent to holders of the Senior Notes in the applicable Debt Offer (collectively, the “Debt Offer Documents”) a period of time in advance of commencing the applicable Debt Offer to allow the Company and its counsel a reasonable opportunity to review and comment on the related Debt Offer Documents. Parent will reasonably consult with the Company regarding the material terms and conditions of any Debt Offer (other than financial terms), including the timing and commencement of any Debt Offer and any relevant tender or consent deadlines. The closing (or, if applicable, effectiveness) of the Debt Offers shall be expressly conditioned on the occurrence of the Closing, and the Company will use reasonable best efforts to cooperate with Parent, at Parent’s request, to facilitate the initial settlement of the Debt Offers by Parent on the Closing Date; provided, that the consummation of a Debt Offer with respect to the Senior Notes shall not be a condition to Closing. The Debt Offers shall be conducted in compliance with (and the terms of any Debt Offer shall comply with) the Indenture and SEC Regulatory Requirements, and the Company shall not be required to cooperate with respect to any Debt Offer that is not in compliance with the Senior Notes, the Indenture and SEC Regulatory Requirements. Subject to Section 5.13(b), at Parent’s expense, the Company shall, and shall cause the Company Subsidiaries to, and shall use commercially reasonable efforts to cause its and their respective representatives Representatives to, as applicable, (i) deliver to the trustee under each Senior Notes Indenture at or prior to the Effective Time, a notice of optional redemption for up to all of the outstanding aggregate principal amount of any series of Senior Notes outstanding and identified by Parent, pursuant to the redemption provisions of the applicable Senior Notes Indenture and the Senior Notes and (ii) provide assistance reasonably requested by Parent to facilitate the redemption of the related Senior Notes Indenture identified by Parent and the satisfaction and discharge of any series of Senior Notes identified by Parent at the Effective Time pursuant to the redemption and satisfaction and discharge provisions, respectively, and other applicable provisions of the applicable Senior Notes Indenture (each, a “Discharge”) and, in each case, use their reasonable best efforts to provide all cooperation take any other actions reasonably requested by Parent that are customary or necessary in connection with the Debt Offer; provided that prior to the Closingtherewith, neither the Company nor any of the Company Subsidiaries, nor counsel for the Company shall be required to furnish any officer’s certificates, legal opinions or negative assurance letters in connection with the Debt Offers (other than, in connection with including the execution of a supplemental indenture relating to any consent solicitation of and delivery by the type described in clause (ii) belowCompany, the Company delivering Subsidiaries or their Representatives (as applicable) of customary officer’s certificates, officers’ certificates and using reasonable best efforts to cause counsel for the Company to deliver customary legal opinions, respectively, to the trustee under the applicable Senior Notes Indenture, to the extent such certificates and opinions would not are required thereby or reasonably requested by the applicable trustee. The Company (in the opinion of the Company, its counsel and the Trustee) conflict with applicable Laws, the terms of the Senior Notes or the Indenture and would be accurate in light applicable Company Subsidiary) shall deliver a copy of the facts and circumstances any such notice or other document to Parent at the time deliveredleast three (3) business days prior to delivering or execute any entering into such notice or other instruments or agreements in connection therewith other than the supplemental indenture described in clause (ii) below. To the extent that the provisions of SEC Regulatory Requirements conflict with this Section 5.14(b)(i), Parent document and the Company shall comply with SEC Regulatory Requirements and shall not be deemed to have breached their obligations under this Agreement by such complianceinclude any proposed changes thereon that Parent reasonably requests. Notwithstanding anything herein to the foregoing and for the avoidance of doubtcontrary, in no event shall the Company or its legal counsel be required to give an opinion with respect to the Financing or any other financing of Parent or Merger Sub.
(iithis Section 7.14(b) To the extent any Debt Offer includes a consent solicitation, then subject to the receipt of the requisite consents, the Company and the applicable Company Subsidiaries shall execute a supplemental indenture to the Indenture in accordance with the terms of the Indenture, amending the terms and provisions of the Indenture as described in the relevant Debt Offer Documents as reasonably requested by Parent, which supplemental indenture shall become operative no earlier than the Effective Time; provided, however, that in no event shall require the Company or any of its officers, directors the Company Subsidiaries to cause any Discharge to be effective unless and until the Effective Time has occurred and Parent has provided or other representatives have any obligation caused to authorize, adopt or execute any amendments or other agreement that is not permitted be provided to the trustee under applicable Law, the terms of the Senior Notes Indentures funds (or Parent has directed the Indenture Company or would become operative prior any of the Company’s Subsidiaries to use funds on their balance sheet) sufficient to effect any such Discharge in compliance with the Effective Timeprovisions of such applicable Senior Notes Indenture.
Appears in 1 contract
Senior Notes. (i) Parent BidCo will be permitted to commence and conduct, in accordance with the terms of that certain indenture, dated as of May 18, 2017 (the “Indenture”) by and among the Company, the subsidiary guarantors party thereto and Wilmington Trust, National Association, as trustee (the “Trustee”), conduct one or more offers to purchase, including any “"Change of Control Offer” " (as such term is defined in the Indenture) or and/or any tender offer, or any exchange offer, and offer and/or to conduct a consent solicitation, if any (each, a “"Debt Offer” and " and, collectively, the “"Debt Offers”"), with respect to any or all of the outstanding aggregate principal amount of the 6.625% Senior Notes due 2022 issued by the Company prior to the date hereof pursuant to the Indenture (the “Senior Notes”) identified by Parent to the Company in writing prior to, on, or after the date hereof on terms that are acceptable to ParentBidCo; provided, that any such Debt Offer shall be is consummated using funds provided by ParentBidCo and at BidCo's expense. Parent BidCo shall not be permitted to commence any applicable Debt Offer until Parent shall have provided provide the Company with the necessary offer to purchase, offer to exchange, consent solicitation statement, letter of transmittal and press release, if any, purchase or other related documents in connection therewith and each other document relevant to such transaction that will be distributed by Parent to holders of with the Senior Notes in the applicable Debt Offer (collectively, the “"Debt Offer Documents”") a reasonable period of time in advance of commencing the applicable Debt Offer to allow the Company and its counsel a reasonable opportunity to review and comment on the related Debt Offer Documents. Parent will reasonably consult with the Company regarding the material terms and conditions of any Debt Offer (other than financial terms), including the timing and commencement of any Debt Offer and any relevant tender or consent deadlines. The closing (or, if applicable, effectiveness) of the Debt Offers shall be expressly conditioned on the occurrence of the Closing, and the Company will use reasonable best efforts to cooperate with Parent, at Parent’s request, to facilitate the initial settlement of the Debt Offers by Parent on the Closing Date; provided, that the consummation of a Debt Offer with respect to the Senior Notes shall not be a condition to Closing. The Debt Offers shall be conducted in compliance with (and the terms of any Debt Offer shall comply with) the Indenture and applicable Law, including SEC Regulatory Requirementsrules and regulations. The Company shall, and shall cause its subsidiaries and their respective Representatives to, in each case, use their reasonable best efforts to provide all cooperation reasonably requested by BidCo in connection with any Debt Offer; provided, that the Company shall not be required to cooperate with respect to any Debt Offer that is not in compliance with the Senior NotesIndenture and applicable Laws.
(ii) Subject to the receipt of any requisite consents in connection with a consent solicitation, the Company and its subsidiaries shall execute a supplemental indenture to the Indenture in accordance with the Indenture, amending the terms and SEC Regulatory Requirementsprovisions of the Indenture as described in the Debt Offer Documents as reasonably requested by BidCo, which supplemental indenture shall become operative no earlier than the Effective Date or the acceptance for purchase of the Senior Notes by BidCo, and shall use reasonable best efforts to cause the trustee under the Indenture to enter into such supplemental indenture. Subject to Section 5.13(b), at Parent’s expense, the The Company shall, and shall cause the Company Subsidiaries its subsidiaries and their respective representatives Representatives to, in each case, use their reasonable best efforts to provide all cooperation reasonably requested by Parent in connection with the Debt Offer; provided that prior to the Closing, neither the Company nor any of the Company Subsidiaries, nor counsel for the Company shall be required to furnish any officer’s certificates, legal opinions or negative assurance letters in connection with the Debt Offers (other than, BidCo in connection with the execution of a supplemental indenture relating to any consent solicitation of the type described in clause (ii) belowindentures, including, if requested by BidCo, the Company delivering customary officer’s certificates, and using shall use its reasonable best efforts to cause its legal counsel for the Company to deliver provide all customary legal opinions, respectively, opinions and its officers to provide officers' certificates required by the trustee under Indenture or otherwise required in connection with the Indenture, transactions contemplated by this clause (ii) or clause (iii) below to the extent such legal opinions or certificates and opinions would not (in are required to be delivered prior to the opinion of the Company, its counsel and the Trustee) conflict with applicable Laws, the terms of the Senior Notes or the Indenture and would be accurate in light of the facts and circumstances at the time delivered) or execute any other instruments or agreements in connection therewith other than the supplemental indenture described in clause (ii) below. To the extent that the provisions of SEC Regulatory Requirements conflict with this Section 5.14(b)(i), Parent and the Company shall comply with SEC Regulatory Requirements and shall not be deemed to have breached their obligations under this Agreement by such complianceEffective Date. Notwithstanding the foregoing and for the avoidance of doubtforegoing, in no event shall the Company or its legal counsel be required to give an opinion with respect to a Debt Offer that in the Financing reasonable opinion of the Company does not comply with applicable Laws or any other financing of Parent or Merger Subthe Indenture.
(iiiii) To the extent any If requested by BidCo, in lieu of or in addition to BidCo commencing a Debt Offer includes a consent solicitation, then subject to for the receipt of the requisite consentsSenior Notes, the Company and the applicable Company Subsidiaries shall execute a supplemental indenture use its reasonable best efforts, to the Indenture in accordance with the terms of extent permitted by the Indenture, amending to (A) issue one or more notices of optional redemption for all or a portion of the terms outstanding aggregate principal amount of the Senior Notes (which may be delivered at BidCo's request in advance of the Effective Date so long as they are contingent upon the occurrence of the Effective Date (it being understood and agreed that they may also be contingent upon the occurrence of other events in addition to the occurrence of the Effective Date)), pursuant to the redemption provisions of the Indenture as described in the relevant Debt Offer Documents as and (B) take any other actions reasonably requested by Parent, which supplemental indenture shall become operative no earlier than BidCo to facilitate the Effective Time; provided, however, that in no event shall the Company or any of its officers, directors or other representatives have any obligation to authorize, adopt or execute any amendments or other agreement that is not permitted under applicable Law, the terms satisfaction and discharge of the Senior Notes or pursuant to the satisfaction and discharge provisions of the Indenture or would become operative prior to and the other provisions of the Indenture applicable thereto. If a conditional notice of redemption is given, BidCo shall ensure that on the Effective TimeDate, so long as the applicable conditions of such redemption are satisfied, the Company has all funds necessary in connection with such redemption.
Appears in 1 contract
Senior Notes. (ia) Unless otherwise required by Law or the terms of the 2029 Senior Notes, the 2029 Senior Notes Indenture and the 2029 Senior Notes Officers’ Certificate, prior to the First Effective Time, the Company shall not exercise its right to redeem or make an offer to repurchase the 2029 Senior Notes without the prior written consent of Parent. Upon written request by Parent will be permitted at its sole discretion and at Parent’s sole cost and expense (including with respect to commence principal and conductinterest of the 2029 Senior Notes), the Company shall use reasonable best efforts to exercise its right to redeem or make an offer to repurchase the 2029 Senior Notes in accordance with the terms of that certain indenture, dated as of May 18, 2017 (the “Indenture”) by and among the Company2029 Senior Notes, the subsidiary guarantors party thereto 2029 Senior Notes Indenture and Wilmington Trustthe 2029 Senior Notes Officers’ Certificate. Notwithstanding the foregoing, National Association, as trustee (nothing in this Section 5.23 shall require the “Trustee”), one or more offers to purchase, including any “Change of Control Offer” (as such term is defined in the Indenture) Company or any tender offer, of its Subsidiaries to pay or deposit any exchange offer, and amounts required to conduct a consent solicitation, if any (each, a “Debt Offer” and collectively, redeem or repurchase the “Debt Offers”), with respect to any or all of the outstanding aggregate principal amount of the 6.625% 2029 Senior Notes due 2022 issued by the Company prior to the date hereof pursuant First Effective Time, except to the Indenture (the “Senior Notes”) identified extent such amounts and related expenses have been previously provided by Parent to the Company or its Subsidiaries, as applicable, in writing prior toaccordance with this Agreement.
(b) Prior to the First Effective Time, on, to the extent Parent determines to conduct an exchange offer and consent solicitation relating to the 2029 Senior Notes for debt securities of Parent or after the date hereof on terms that are acceptable to Parent; provided, that any of its Subsidiaries (any such Debt Offer shall be consummated using funds provided by Parent. Parent shall not be permitted to commence any applicable Debt Offer until Parent shall have provided the Company with the necessary offer to purchase, offer to exchange, consent solicitation statement, letter of transmittal and press release, if any, in connection therewith and each other document relevant to such transaction that will be distributed by Parent to holders of the Senior Notes in the applicable Debt Offer (collectivelytransaction, the “Debt Offer DocumentsExchange”) a period of time in advance of commencing the applicable Debt Offer to allow the Company and its counsel a reasonable opportunity to review and comment on the related Debt Offer Documents. Parent will reasonably consult with the Company regarding the material terms and conditions of any Debt Offer (other than financial terms), including the timing and commencement of any Debt Offer and any relevant tender or consent deadlines. The closing (or, if applicable, effectiveness) of the Debt Offers shall be expressly conditioned on the occurrence of the Closing, and the Company will use reasonable best efforts to cooperate with Parent, at Parent’s request, to facilitate the initial settlement of the Debt Offers by Parent on the Closing Date; provided, that the consummation of a Debt Offer with respect to the Senior Notes shall not be a condition to Closing. The Debt Offers shall be conducted in compliance with (and the terms of any Debt Offer shall comply with) the Indenture and SEC Regulatory Requirements, and the Company shall not be required to cooperate with respect to any Debt Offer that is not in compliance with the Senior Notes, the Indenture and SEC Regulatory Requirements. Subject to Section 5.13(b), at Parent’s expense, the Company shall, and shall cause the Company its Subsidiaries and their respective representatives to, in each case, and shall use their reasonable best efforts to provide all cooperation reasonably requested by Parent in connection with the Debt Offer; provided that prior to the Closing, neither the Company nor any of the Company Subsidiaries, nor counsel for the Company shall be required to furnish any officer’s certificates, legal opinions or negative assurance letters in connection with the Debt Offers (other than, in connection with the execution of a supplemental indenture relating to any consent solicitation of the type described in clause (ii) below, the Company delivering customary officer’s certificates, and using its reasonable best efforts to cause counsel for its and their respective Representatives to, on a timely basis, upon the Company to deliver customary legal opinionsreasonable request of Parent, respectivelyprovide reasonable cooperation in connection with the Exchange, to the trustee under the Indenture, to the extent such certificates and opinions would not (in the opinion of the Company, its counsel and the Trustee) conflict including providing cooperation substantially consistent with applicable Laws, the terms of Section 5.15(c) as though the Senior Notes or references therein to the Indenture Financing include references to the Exchange and would be accurate in light of the facts and circumstances at the time delivered) or execute any other instruments or agreements in connection therewith other than the supplemental indenture described in clause (ii) below. To the extent that the provisions of SEC Regulatory Requirements conflict with this Section 5.14(b)(i)including, Parent and the Company shall comply with SEC Regulatory Requirements and shall not be deemed to have breached their obligations under this Agreement by such compliance. Notwithstanding the foregoing and for the avoidance of doubt, in no event shall providing reasonable assistance with the Company or its legal counsel be required to give an opinion with respect preparation of, and executing and delivering (to the Financing or any other financing extent that officers of Parent or Merger Sub.
(ii) To the extent any Debt Offer includes a consent solicitation, then subject to the receipt of the requisite consents, the Company and the applicable Company Subsidiaries shall execute a supplemental indenture to the Indenture in accordance with the terms of the Indenture, amending the terms and provisions of the Indenture as described in the relevant Debt Offer Documents as reasonably requested by Parent, which supplemental indenture shall become operative no earlier than the Effective Time; provided, however, that in no event shall the Company or any Subsidiary thereof remain in such roles at the time of its officersthe Exchange and otherwise subject to Section 5.15(c)(III)), directors one or more supplemental indentures to the 2029 Senior Notes Indenture and such other representatives have any obligation to authorizedefinitive documentation and certifications as are customarily prepared in connection with an exchange and consent solicitation (collectively, adopt or execute any amendments or other agreement the “Exchange Documents”). Parent and the Company further agree that is not permitted under applicable Law, the terms of Section 5.15(d) shall apply to this Section 5.23(b); provided that (i) the Senior Notes or Exchange shall be at Parent’s sole cost and expense and (ii) none of the Indenture or would Exchange Documents shall become operative effective prior to the First Effective Time.
Appears in 1 contract
Sources: Merger Agreement (Steelcase Inc)
Senior Notes. (i) Parent BidCo will be permitted to commence and conduct, in accordance with the terms of that certain indenture, dated as of May 18, 2017 (the “Indenture”) by and among the Company, the subsidiary guarantors party thereto and Wilmington Trust, National Association, as trustee (the “Trustee”), conduct one or more offers to purchase, including any “Change of Control Offer” (as such term is defined in the Indenture) or and/or any tender offer, or any exchange offer, and offer and/or to conduct a consent solicitation, if any (each, a “Debt Offer” and and, collectively, the “Debt Offers”), with respect to any or all of the outstanding aggregate principal amount of the 6.625% Senior Notes due 2022 issued by the Company prior to the date hereof pursuant to the Indenture (the “Senior Notes”) identified by Parent to the Company in writing prior to, on, or after the date hereof on terms that are acceptable to ParentBidCo; provided, that any such Debt Offer shall be is consummated using funds provided by ParentBidCo and at BidCo’s expense. Parent BidCo shall not be permitted to commence any applicable Debt Offer until Parent shall have provided provide the Company with the necessary offer to purchase, offer to exchange, consent solicitation statement, letter of transmittal and press release, if any, purchase or other related documents in connection therewith and each other document relevant to such transaction that will be distributed by Parent to holders of with the Senior Notes in the applicable Debt Offer (collectively, the “Debt Offer Documents”) a reasonable period of time in advance of commencing the applicable Debt Offer to allow the Company and its counsel a reasonable opportunity to review and comment on the related Debt Offer Documents. Parent will reasonably consult with the Company regarding the material terms and conditions of any Debt Offer (other than financial terms), including the timing and commencement of any Debt Offer and any relevant tender or consent deadlines. The closing (or, if applicable, effectiveness) of the Debt Offers shall be expressly conditioned on the occurrence of the Closing, and the Company will use reasonable best efforts to cooperate with Parent, at Parent’s request, to facilitate the initial settlement of the Debt Offers by Parent on the Closing Date; provided, that the consummation of a Debt Offer with respect to the Senior Notes shall not be a condition to Closing. The Debt Offers shall be conducted in compliance with (and the terms of any Debt Offer shall comply with) the Indenture and applicable Law, including SEC Regulatory Requirementsrules and regulations. The Company shall, and shall cause its subsidiaries and their respective Representatives to, in each case, use their reasonable best efforts to provide all cooperation reasonably requested by BidCo in connection with any Debt Offer; provided, that the Company shall not be required to cooperate with respect to any Debt Offer that is not in compliance with the Senior NotesIndenture and applicable Laws.
(ii) Subject to the receipt of any requisite consents in connection with a consent solicitation, the Company and its subsidiaries shall execute a supplemental indenture to the Indenture in accordance with the Indenture, amending the terms and SEC Regulatory Requirementsprovisions of the Indenture as described in the Debt Offer Documents as reasonably requested by BidCo, which supplemental indenture shall become operative no earlier than the Effective Date or the acceptance for purchase of the Senior Notes by BidCo, and shall use reasonable best efforts to cause the trustee under the Indenture to enter into such supplemental indenture. Subject to Section 5.13(b), at Parent’s expense, the The Company shall, and shall cause the Company Subsidiaries its subsidiaries and their respective representatives Representatives to, in each case, use their reasonable best efforts to provide all cooperation reasonably requested by Parent in connection with the Debt Offer; provided that prior to the Closing, neither the Company nor any of the Company Subsidiaries, nor counsel for the Company shall be required to furnish any officer’s certificates, legal opinions or negative assurance letters in connection with the Debt Offers (other than, BidCo in connection with the execution of a supplemental indenture relating to any consent solicitation of the type described in clause (ii) belowindentures, including, if requested by BidCo, the Company delivering customary officer’s certificates, and using shall use its reasonable best efforts to cause its legal counsel for the Company to deliver provide all customary legal opinions, respectively, opinions and its officers to provide officers’ certificates required by the trustee under Indenture or otherwise required in connection with the Indenture, transactions contemplated by this clause (ii) or clause (iii) below to the extent such legal opinions or certificates and opinions would not (in are required to be delivered prior to the opinion of the Company, its counsel and the Trustee) conflict with applicable Laws, the terms of the Senior Notes or the Indenture and would be accurate in light of the facts and circumstances at the time delivered) or execute any other instruments or agreements in connection therewith other than the supplemental indenture described in clause (ii) below. To the extent that the provisions of SEC Regulatory Requirements conflict with this Section 5.14(b)(i), Parent and the Company shall comply with SEC Regulatory Requirements and shall not be deemed to have breached their obligations under this Agreement by such complianceEffective Date. Notwithstanding the foregoing and for the avoidance of doubtforegoing, in no event shall the Company or its legal counsel be required to give an opinion with respect to a Debt Offer that in the Financing reasonable opinion of the Company does not comply with applicable Laws or any other financing of Parent or Merger Subthe Indenture.
(iiiii) To the extent any If requested by BidCo, in lieu of or in addition to BidCo commencing a Debt Offer includes a consent solicitation, then subject to for the receipt of the requisite consentsSenior Notes, the Company and the applicable Company Subsidiaries shall execute a supplemental indenture use its reasonable best efforts, to the Indenture in accordance with the terms of extent permitted by the Indenture, amending to (A) issue one or more notices of optional redemption for all or a portion of the terms outstanding aggregate principal amount of the Senior Notes (which may be delivered at BidCo’s request in advance of the Effective Date so long as they are contingent upon the occurrence of the Effective Date (it being understood and agreed that they may also be contingent upon the occurrence of other events in addition to the occurrence of the Effective Date)), pursuant to the redemption provisions of the Indenture as described in the relevant Debt Offer Documents as and (B) take any other actions reasonably requested by Parent, which supplemental indenture shall become operative no earlier than BidCo to facilitate the Effective Time; provided, however, that in no event shall the Company or any of its officers, directors or other representatives have any obligation to authorize, adopt or execute any amendments or other agreement that is not permitted under applicable Law, the terms satisfaction and discharge of the Senior Notes or pursuant to the satisfaction and discharge provisions of the Indenture or would become operative prior to and the other provisions of the Indenture applicable thereto. If a conditional notice of redemption is given, BidCo shall ensure that on the Effective TimeDate, so long as the applicable conditions of such redemption are satisfied, the Company has all funds necessary in connection with such redemption.
Appears in 1 contract
Sources: Acquisition Agreement (NCR Corp)
Senior Notes. (i) Parent will be permitted Prior to commence and conduct, in accordance with the terms of that certain indenture, dated as of May 18, 2017 (the “Indenture”) by and among the Company, the subsidiary guarantors party thereto and Wilmington Trust, National Association, as trustee (the “Trustee”), one or more offers to purchase, including any “Change of Control Offer” (as such term is defined in the Indenture) or any tender offer, or any exchange offer, and to conduct a consent solicitation, if any (each, a “Debt Offer” and collectively, the “Debt Offers”)Effective Time, with respect to any or the Company Senior Notes, the Company shall, upon request of Parent, (i) use its reasonable best efforts to issue a notice of redemption (contingent upon the occurrence of the Closing) at least 10 days but not more than 60 days before the redemption date agreed with Parent (such redemption date not to be a date prior to the Effective Time) for all of the outstanding aggregate principal amount of the 6.625% such Company Senior Notes due 2022 issued by the Company prior to the date hereof pursuant to the applicable provisions of the Company Senior Notes Indenture and (the “Senior Notes”ii) identified take any actions reasonably requested by Parent in accordance with terms of the Company Senior Notes Indenture that are customary or necessary to facilitate the redemption of such Company Senior Notes pursuant to the Company in writing prior to, on, Senior Notes Indenture on or after the date hereof Effective Time (including delivering to the trustee under the Company Senior Notes any officer’s certificate required pursuant to the Company Senior Notes Indenture in connection with the redemption of the Company Senior Notes), and Parent will provide (or cause to be provided) (including by means of the Company at or after the Closing) on terms that are acceptable or after the Closing Date funds in an amount equal to Parent; providedthe amount necessary for the Company to redeem, that any such Debt Offer shall be consummated using funds provided defease, satisfy and/or discharge the Company Senior Notes, if requested by Parent. Parent shall not Any such redemption or satisfaction and discharge must be permitted to commence any applicable Debt Offer until Parent shall have provided the Company with the necessary offer to purchase, offer to exchange, consent solicitation statement, letter of transmittal and press release, if any, in connection therewith and each other document relevant to such transaction that will be distributed by Parent to holders of the Senior Notes in the applicable Debt Offer (collectively, the “Debt Offer Documents”) a period of time in advance of commencing the applicable Debt Offer to allow the Company and its counsel a reasonable opportunity to review and comment on the related Debt Offer Documents. Parent will reasonably consult with the Company regarding the material terms and conditions of any Debt Offer (other than financial terms), including the timing and commencement of any Debt Offer and any relevant tender or consent deadlines. The closing (or, if applicable, effectiveness) of the Debt Offers shall be expressly conditioned on the occurrence of the Closing, and . All documentation regarding the Company will use reasonable best efforts to cooperate with Parent, at Parent’s request, to facilitate the initial settlement of the Debt Offers by Parent on the Closing Date; provided, that the consummation of a Debt Offer with respect to the Senior Notes shall not be a condition to Closing. The Debt Offers foregoing shall be conducted in compliance with (and the terms of any Debt Offer shall comply with) the Indenture and SEC Regulatory Requirements, and the Company shall not be required to cooperate with respect to any Debt Offer that is not in compliance with the Senior Notes, the Indenture and SEC Regulatory Requirements. Subject to Section 5.13(b), at Parent’s expense, the Company shall, and shall cause the Company Subsidiaries and their respective representatives to, in each case, use their reasonable best efforts to provide all cooperation reasonably requested by Parent in connection with the Debt Offer; provided that prior to the Closing, neither the Company nor any of the Company Subsidiaries, nor counsel for the Company shall be required to furnish any officer’s certificates, legal opinions or negative assurance letters in connection with the Debt Offers (other than, in connection with the execution of a supplemental indenture relating to any consent solicitation of the type described in clause (ii) below, the Company delivering customary officer’s certificates, and using reasonable best efforts to cause counsel for the Company to deliver customary legal opinions, respectively, to the trustee under the Indenture, to the extent such certificates and opinions would not (in the opinion of the Company, its counsel and the Trustee) conflict with applicable Laws, the terms of the Senior Notes or the Indenture and would be accurate in light of the facts and circumstances at the time delivered) or execute any other instruments or agreements in connection therewith other than the supplemental indenture described in clause (ii) below. To the extent that the provisions of SEC Regulatory Requirements conflict with this Section 5.14(b)(i), Parent and the Company shall comply with SEC Regulatory Requirements and shall not be deemed to have breached their obligations under this Agreement by such compliance. Notwithstanding the foregoing and for the avoidance of doubt, in no event shall the Company or its legal counsel be required to give an opinion with respect to the Financing or any other financing of Parent or Merger Sub.
(ii) To the extent any Debt Offer includes a consent solicitation, then subject to the receipt review and approval (not to be unreasonably withheld, conditioned or delayed) of the requisite consents, the Company and the applicable Company Subsidiaries shall execute a supplemental indenture to the Indenture in accordance with the terms of the Indenture, amending the terms and provisions of the Indenture as described in the relevant Debt Offer Documents as reasonably requested by Parent, which supplemental indenture shall become operative no earlier than the Effective Time; provided, however, that in no event shall the Company or any of its officers, directors or other representatives have any obligation to authorize, adopt or execute any amendments or other agreement that is not permitted under applicable Law, the terms of the Senior Notes or the Indenture or would become operative prior to the Effective Time.
Appears in 1 contract
Sources: Merger Agreement (Alteryx, Inc.)